Nolan v. Smith

McFARLAND, J.

The defendant Smith was a justice of the peace, and defendants Packard and Brown were sureties on his official bond. The action was brought against all three defendants to recover damages for an alleged unlawful imprisonment of plaintiff by the defendant Smith. Smith demurred

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to the complaint, and his demurrer was overruled, and, from all that appears, the action is still pending against him. Packard and Brown also demurred to the complaint, and their demurrer was sustained; and plaintiff, declining to amend, what purports to be a judgment for costs was entered in their favor. Prom this judgment plaintiff appeals.

Respondents object to the hearing of the appeal, and contend that it should be dismissed because the purported judgment from which plaintiff attempts to appeal does not dispose of the whole case, and is not therefore a final judgment from which an appeal can be taken. We think that this contention must prevail. It is clear that the appeal does not lie unless the action of the court below appealed from is a “final judgment” within the meaning of section 939 of the Code of Civil Procedure ; and the conclusion that it is not such a final judgment seems to be unavoidable.

The question has not, to our knowledge, been before this court in the exact form in which it is presented in the case at bar,—that is, where the objection was, that the judgment appealed from did not finally dispose of the rights of all the parties to the action. But this court has given definitions of the phrase “final judgment” which seem to exclude from that category the so-called judgment in the case at bar. In

Stockton etc. Works

v.

Glens Falls Ins. Co.,

98 Cal. 577, the court say: “The judgment or decree of December 19, 1890, denying to defendant the relief demanded in what is termed his cross-complaint was not a final judgment, and .the attempted separate appeal therefrom must be dismissed. There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it was entered, and finally determines the rights of the parties in relation to the matter in controversy. (Elliott’s Appellate Procedure, secs. 90, 91;