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Daniels v. Landsdale

38 Cal. 567 Court Cal. English

Delivered by Sanderson, J., delivered the opinion of the Court:

Contents

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p. 567
H. S. DANIELS, Respondent, v. F. T. LANDSDALE, Appellant.

Headnote

Appealable Obdeb—What Not.—An order sustaining a demurrer to an answer containing an equitable defense, is not appealable*
Appeal from the District Court of the Eighth District, Humboldt County.
The defendant appealed.
The case is stated in the opinion.
Elisha Cook and T. E. Eittell, for Appellant.
George Cadwallader, for Respondent.

This is an action of ejectment. The defendant admits, in his answer, that he is in possession, but denies that his possession is unlawful or wrongful. He does not deny the plaintiff’s title, but alleges that he holds the legal title in trust for him, and asks that such be the judgment of the Court, and that the plaintiff be made to convey it to him. To this equitable defense the plaintiff demurred. The Court below sustained the demurrer, and ordered what it termed the cross-complaint to be dismissed. No further trial was had and no further order or judgment made, except an order-staying proceedings for fifteen days, to enable defendant to perfect an appeal to this Court. Thus it appears that there has been no judgment in the Court below, except upon the demurrer to the answer. No appeal lies from such a judgment. (Pr. Act, Sec. 336; Moulton v. Ellmaker, 30 Cal. 527 .)

Appeal dismissed.

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