Nicoll v. First National Trust & Savings Bank of San Diego

MARKS, J. Respondent has moved to dismiss this appeal upon the sole ground ‘ ‘ That said attempted appeal from the ‘Order sustaining Demurrer without leave to amend’ is not an appealable order.”

An examination of the record discloses that the complaint contains three causes of action; that a general demurrer to the first and third causes of action was sustained' without leave to amend and overruled as to the second cause of action.

The notice of appeal contains a notice that it was taken “from the ‘Order Sustaining Demurrer Without Leave to Amend’, dated January 4th, 1934, and entered in Minute Book 117, at page 387, Department four (4) of the above entitled court. This appeal is taken from the said Order Sustaining defendant’s demurrer without leave to amend, to plaintiff’s First and Third causes of action, and from the whole of the said Order and any and all Orders, and/or judgments made and entered in pursuance thereof.”

It is well settled that an appeal cannot be taken from an order sustaining a demurrer. (See. 963, Code Civ. Proc.) Here the appeal was also taken from the judgment made and entered in pursuance of the order.

An appeal from a judgment cannot “be dismissed on the ground that it was taken after the rendition of such judgment or order and before formal entry”. (Sec. 939, Code Civ. Proc.)

As the motion to dismiss is made on the sole ground that the appeal was taken from the order sustaining the demurrer and it was actually taken from this order and the judgment, the motion must be now denied, reserving the right to dismiss the attempted appeal from the order when the case is considered on its merits. It is so ordered.

Barnard, P. J., concurred. Jennings, J., being absent, did not participate herein.