Nicoll v. First National Trust & Savings Bank

GRIFFIN, J., pro tem. This is an attempted appeal, by plaintiff, from an “order sustaining demurrer without leave to amend”, to the first and third causes of action of the complaint and from judgments made and entered in pursuance thereof.

The record indicates that on January 4, 1934, the trial court, after argument of counsel, made its written order sustaining the demurrer of the defendant to the first and third causes of action of plaintiff’s complaint, without leave to amend, and as to the second cause of action the demurrer was overruled.

Plaintiff, on January 10, 1934, filed her written notice of appeal, appealing from the “order sustaining demurrer without leave to amend, dated January 4, 1934”, and from the “order sustaining defendant’s demurrer without leave to amend, to plaintiff’s first and third causes of action, and [507]from the whole of the said order and any and all orders and/or judgments made and entered in pursuance thereof”.

A motion to dismiss the appeal was made on the sole ground that it was taken from an “order sustaining demurrer without leave to amend”, and was considered by this court and denied (139 Cal. App. 195 [33 Pac. (2d) 838]) as the notice of appeal referred to both a judgment and order. This was done so that further consideration might be given to the appeal from the judgment and in order that the record might be examined. The record does not contain a copy of any judgment nor does it disclose the filing of a final judgment in compliance with section 963 of the Code of Civil Procedure, although the notice of appeal refers to a judgment.

In appellant’s answer to respondent’s motion to dismiss the attempted appeal filed in this court April 26, 1934, she refers to some entry of a judgment of dismissal by the trial court, dated April 10, 1934, the contents of which do not appear in the record before us. However, if this statement in the brief were to be considered, the appeal is not taken from the judgment, it having been rendered several months after the notice of appeal was filed.

The facts and holding of the court set out in the case of Worth v. Witt, 62 Cal. App. 134 [216 Pac. 90], are so similar to the instant case that further discussion here would be but a repetition of the decision in that case.

Having attempted to appeal from an order from which the statute gives no right of appeal, no judgment having been rendered at the time the appeal was taken, and no judgment appearing in the record, this court has no jurisdiction. Therefore, the appeal of necessity must be and is dismissed.