Mason v. Woodland Sav. & Loan Ass'n

BISHOP, J. pro tem.* Defendant’s demurrer to the complaint was sustained without leave to amend; the plaintiff filed a notice of appeal; the trial court ordered the action dismissed; we find that the demurrer was properly sustained and are affirming the judgment.

Some time ago the plaintiff commenced action, numbered 866583, against the defendant on the same oral contract that he made the basis of this action. A general demurrer to it was sustained and an amended complaint was filed. An answer was filed to this last mentioned pleading, then the defendant made a motion for a judgment on the pleadings. The trial court interpreted the motion as a belated demurrer to the amended complaint, and made an order sustaining that demurrer. Fearing that the procedure followed would lead to difficulties, plaintiff dismissed his action, without prejudice, and then filed a new action, numbered 873782, based upon the same oral contract that he had used as a base for his former complaints.

A general demurrer was filed to this complaint in the new action. The trial court, January 24, 1966, ordered the new action consolidated with the action already dismissed and sustained the demurrer to the new complaint, without leave to amend, these appearing as the grounds: “No cause of action is stated, a. Plaintiff alleges an agreement to enter into a contract. 209 C.A.2d 401 b. The creation of security interests in real propery must be in writing. CC 2922 CCP 1971. ’ ’

Four days later the plaintiff filed his notice of appeal “from the Order of Court made on January 24, 1966, sustain[43]ing without leave to amend the demurrer of defendant Woodland Savings and Loan Association to plaintiff’s complaint in Case No. 873702. The said action is a continuance of Case No. 866583, and by Order of Court dated January 24, 1966, the file in said Case No. 866583 has been consolidated with the file in Case No. 873702.”

On February 3, 1966, an order signed by the trial judge was filed. After reciting that the demurrer to the complaint had been sustained without leave to amend, it " Ordered, Adjudged and Decreed that this action be consolidated with case number 866583 between the same parties, and that this action be, and the same hereby is, dismissed as to defendant Woodland Savings and Loan Association. ...”

In the premises we are interpreting the notice of appeal as an appeal from the judgment (order) of dismissal. This we may do. The document to which we refer was originally la-belled “Judgment of Dismissal” but for some reason the word “Judgment” was stricken and the word “order” substituted. We attach no significance to this, because section 581d, of the Code of Civil Procedure provides that “All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action . . . and such orders when so filed shall constitute judgments and be effective for all purposes. . . .” We interpret this to mean that further action is not required to constitute the entry of the order, but that when so “filed” it comes within the purview of subdivision (c) of rule 2 of Rules on Appeal,1 and the cases holding that notices of appeal from orders sustaining demurrers without leave to amend apply here to judgments or orders of dismissal subsequently filed. (See Loop v. State (1966) 240 Cal.App.2d 591, 592 [49 Cal.Rptr. 909] and cases cited ; see also Shepardson v. McLellan (1963) 59 Cal.2d 83, 87 [27 Cal.Rptr. 884, 888, 378 P.2d 108].)