Wood, Curtis Co. v. Missouri Etc. Ry. Co.

ANGELLOTTI, J.

This is an action to recover the value-of two carloads of potatoes, alleged to be worth $587.94, shipped by plaintiff over the railroads of defendants, common carriers, and alleged to have been damaged while in the custody of said carriers, by reason of their negligence. Defendants interposed demurrers to the second amended complaint on the grounds of want of facts to constitute a cause of action, want of jurisdiction over the persons of defendants, also of ambiguity, uncertainty, unintelligibility, and' that the action is barred by a provision of our statute of limitations. On March 2, 1905, these demurrers, after argument, were sustained by the trial court, with leave to plaintiff to amend its complaint within twenty days. On the same day motions to strike out certain portions of such complaint were granted in part. Orders so disposing of demurrers and motions to strike out were thereupon entered on the minutes. On March 10, 1905, plaintiff having notified defendants and the court that it would not amend and elected to stand on the second amended complaint as to which the demurrers had been sustained, the court rendered judgment in the following form:—

“In the above entitled action the respective demurrers of the defendant, Missouri Pacific Railway Company, and St. Louis, Iron Mountain & Southern Railway Company, to the second amended complaint having been sustained and plaintiff allowed 20 days in which to amend, and plaintiff having elected in writing not to amend but to stand on the pleading as filed, it is ordered that the leave heretofore granted to amend be withdrawn, and the demurrers having been sustained, it is ordered that the action be dismissed and defendants recover their costs.

“March 10, 1905. “J. W. Hughes, Judge.”

This judgment was on the same day spread at length in writing on the courtroom blotter or civil minutes of the court and on the register of actions, and prior to April 1, 1905, was spread at length in writing in the minutes of the court. It was not entered in the judgment-book, the book designated by law for the entry of judgments (Code Civ. Proc., sec. 668), until September 29, 1905. This appeal of plaintiff, taken to-the district court of appeal, according to the notice of appeal

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“from the orders and judgment therein given, made and entered in the said Superior Court, on the 2nd day of March, 1905,” was taken prior to such entry, viz. in August, 1905. A motion was made to dismiss the appeal upon the ground, among others, that it was prematurely taken and that the appellate court was therefore without jurisdiction to entertain it. The case being submitted to that court both upon the motion and upon the merits, the motion to dismiss was denied and the judgment was reversed with directions to the court below to modify the order to strike out and to overrule the demurrers. Upon petition of defendants an order was made by this court within the time allowed by the constitution, transferring the appeal to this court for hearing and determination. The motion to dismiss has been renewed here and submitted, with the appeal on the merits, for decision.