From Casetext: Smarter Legal Research

Madsen v. Turlock Irrigation Dist

Court of Appeal of California, Third District
Jan 21, 1943
56 Cal.App.2d 742 (Cal. Ct. App. 1943)

Opinion

Docket No. 6642.

January 21, 1943.

APPEAL from an order of the Superior Court of Merced County sustaining a demurrer. Stanley Murray, Judge assigned. Appeal dismissed.

F.M. Ostrander for Appellants.

Griffin Boone for Respondent.


THE COURT.

The plaintiff has attempted to appeal from an order sustaining defendant's demurrer to the complaint without leave to amend the pleading. There is no appeal from that order. It does not appear that a judgment was entered pursuant to that order. The record contains no reference to a judgment.

[1] The purported appeal in this case was prematurely and erroneously taken from the order sustaining the demurrer without leave to amend. The right of appeal is statutory. No right of appeal exists unless it is found either in the Constitution or in enacted statutes. (2 Cal.Jur. 111, § 4.) It has been uniformly held a reviewing court is without jurisdiction to entertain a purported appeal from an order sustaining or overruling a demurrer to the complaint, even though it is made without leave to amend the pleading. ( Rickert v. Zoeger, 169 Cal. 399 [ 146 P. 894]; Ham v. Los Angeles County, 46 Cal.App. 148, 151 [ 189 P. 462]; Braren v. Reliable Carpet Works, Inc., 125 Cal.App. 489 [ 13 P.2d 972]; Doran v. Sherman, 18 Cal.App.2d 479 [ 64 P.2d 442]; 2 Cal. Jur. 156, § 26.) In the Rickert case, supra, which was based on a record which is exactly like the one which is involved in this case, it is said:

"An order sustaining or overruling a demurrer is not an appealable order. [Citing many cases.] This court is therefore without jurisdiction to act upon the so-called appeal and it must be dismissed."

The purported appeal is therefore dismissed.


Summaries of

Madsen v. Turlock Irrigation Dist

Court of Appeal of California, Third District
Jan 21, 1943
56 Cal.App.2d 742 (Cal. Ct. App. 1943)
Case details for

Madsen v. Turlock Irrigation Dist

Case Details

Full title:I.B. MADSEN et al., Appellants, v. TURLOCK IRRIGATION DISTRICT, Respondent

Court:Court of Appeal of California, Third District

Date published: Jan 21, 1943

Citations

56 Cal.App.2d 742 (Cal. Ct. App. 1943)
133 P.2d 416

Citing Cases

Weiss v. Garofalo

[1] An appeal being wholly dependent upon and governed by the statutory (or constitutional) enactments…

Futlick v. F.W. Woolworth Co.

The order sustaining the demurrer without leave to amend is not an appealable order and this court must…