Dabney v. Wilhelm — 190 Cal. 340

Majority

p. 340

[L. A. No. 7259.

In Bank.

January 12, 1923.]

JOSEPH B. DABNEY, Appellant, v. HENRY WILHELM et al., Respondents.

Headnote

[1] Appeal—Order Sustaining Objection to Testimony—Dismissal. No appeal lies from, an order sustaining an objection to the taking of any testimony in a cause on the ground that the complaint does not state a cause of action, since the order is not one mentioned among the interlocutory orders which section 963 of the Code of Civil Procedure makes the subject of appeal, but it may be reviewed upon appeal from the judgment as an intermediate order which necessarily affects the judgment.

APPEAL from an order of the Superior Court of Los Angeles County sustaining an objection to the taking of any testimony in an action. John M. York, Judge. Appeal dismissed.

The facts are stated in the opinion of the court.

Robert M. Pease for Appellant.

Claud B. Andrews, Carnahan & Clark and John G. Gill-ham for Respondents.

The plaintiff brought an action seeking to compel specific performance of an alleged agreement made by certain of the defendants to enter into an oil lease. A general demurrer to the amended complaint was overruled, and the defendants answered. The case came on for trial, and stipulations as to further amendments to the complaint and as to certain facts were filed. Defendants thereupon objected to the taking of any testimony, on the ground that the amended complaint did not state a cause of action, and the court sustained the objection. The plaintiff is here seeking a reversal of that order. “The appeal, of course,” he says, “is taken on the judgment roll.”

[1] An examination of the record brought here in the transcript discloses that apparently no judgment was ever entered in the case. We may well assume that to be the fact, for the clerk’s certificate to the purported judgment-roll malíes no mention of such judgment and, according to

p. 341

the notice, the appeal is taken “from the judgment and order sustaining the objection to the taking of any testimony in said cause, and from the whole thereof,” further reference being made to the minute order of the court sustaining the objection to the taking of testimony. No appeal lies from such order. (Code Civ. Proc., sec. 963.) It is not one mentioned among the interlocutory orders which the statute makes the subject of appeal. It may be reviewed upon appeal from the judgment as an intermediate order which necessarily affects the judgment. (Clifford v. Allman, 84 Cal. 528 , 533 [ 24 Pac. 292 ]; Swain v. Burnette, 76 Cal. 299 , 302 [ 18 Pac. 394 ].)

The appeal is dismissed.

Wilbur, J., Lawlor, J., Seawell, J., Shaw, C. J., and Kerrigan, J., concurred.

Cases cited

Clifford v. Allman 84 Cal. 528 Cal. 1890-06-12 at 533 p. 341
Swain v. Burnette 76 Cal. 299 Cal. 1888-05-28 at 302 p. 341