Rickert v. Zoeger
Before: Shaw
Synopsis
Appeal—Order Sustaining or Overruling Demurrer—Jurisdiction— Dismissal.—An order sustaining or overruling a demurrer not being an appealable order, the appellate court is without jurisdiction to act upon an appeal purporting to bé taken from such an order, and it will be dismissed.
SHAW, J. The action is to recover a sum of money alleged to be due upon an agreement for the sale of a “saloon business” in the city of Los Angeles.
The notice of appeal states that the plaintiff appeals “from the decision of the superior court rendered in said action, whereby the said court sustains defendant’s demurrer to plaintiff’s fifth amended complaint without leave to amend.” The record does not show that any judgment was entered and it does not contain any other notice of appeal.
An order sustaining or overruling a demurrer is not an appealable order. (Moraga v. Emeric, 4 Cal. 308; Moulton v. Ellmaker, 30 Cal. 529; Agard v. Valencia, 39 Cal. 297; Daniel v. Lansdale, 38 Cal. 567; Hibberd v. Smith, 39 Cal. 146; Ashley v. Olmstead, 54 Cal. 618.) This court is therefore without jurisdiction to act upon the so-called appeal and it must be dismissed.
The appeal is dismissed.
Sloss, J., and Angellotti, C. J., concurred.
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