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Rickert v. Zoeger

169 Cal. 399 Court Department One. Decision date 1915-02-18 Docket L. A. No. 3436 English

Delivered by SHAW, J.

Contents

Majority

p. 399
[L. A. No. 3436.
Department One.
February 18, 1915.]
FRED RICKERT, Appellant, v. E. ZOEGER et al., Respondents.

Headnote

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.
APPEAL from an order of the Superior Court of Los Angeles County sustaining a demurrer. John Perry Wood, Judge.
The facts are stated in the opinion of the court.
Stephen Monteleone, for Appellant.
Howard J. Fish, and Guy Eddie, for Respondent.

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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