Hanks v. McLaughlin — 20 Cal. App. 204

Majority

p. 204

[Civ. No. 1090.

First Appellate District.

October 23, 1912.]

W. F. HANKE, Appellant, v. H. B. McLAUGHLIN, City Clerk of Sanger, Respondent.

Headnote

Appeal—Absence op Judgment in Mandamus—Order Sustaining Demurrer to Petition—Want op Jurisdiction—Dismissal.-—An appeal does not lie from an order sustaining or overruling a demurrer to a petition for a writ of mandamus. The .action of the court upon the demurrer can only be reviewed upon the appeal from the final judgment entered in the proceedings, and where no final judgment appears in the record, the court has no jurisdiction of the appeal, and it must be dismissed.

APPEAL from a judgment and order of the Superior Court of Fresno County sustaining a demurrer to a petition for a writ of mandate. H. Z. Austin, Judge.

The facts are stated in the opinion of the court.

Everts & Ewing, for Appellant.

E. L. Howell, and Drew & Drew, for Respondent.

This purports to be an appeal from a judgment and order “sustaining the demurrer of defendant to plaintiff's petition herein.” The petition was one for a writ of mandate against the defendant as city clerk of the city of Sanger.

The record before us discloses that the court sustained defendant’s demurrer to plaintiff’s petition, but it does not disclose that any judgment, either denying or dismissing the petition, was ever rendered or entered. The notice of appeal in the record purports to be an appeal “from that certain order and judgment . . . sustaining the demurrer of defendant to plaintiff’s petition herein.”

The only order in the record is as follows: “The demurrer to the petition for a writ of mandamus, which said demurrer is on file herein, is argued by respective counsel, and- submitted, and it is by the court ordered that the said 'demurrer be, and it is hereby sustained.” There is no final judgment in the record whatever.

p. 205

An appeal does not lie from an order either sustaining or overruling a demurrer. The action of the court upon the demurrer can only he reviewed upon an appeal from the final judgment entered in the action or special proceeding. (Moraga v. Emeric, 4 Cal. 308 ; Moulton v. Ellmaker, 30 Cal. 529 ; Agard v. Valencia, 39 Cal. 292 ; Hibberd v. Smith, 39 Cal. 145 ; Fortain v. Smith, 114 Cal. 494 , [ 46 Pac. 381 ]; Wood, Curtis & Co. v. Missouri etc. Ry. Co., 152 Cal. 344 , [ 92 Pac. 868 ]; Litch v. Kerns, 8 Cal. App. 747 , [ 97 Pac. 897 ]; Code Civ. Proc., secs. 939, 963.) (See, also, Kimple v. Conway, 69 Cal. 71 , [ 10 Pac. 189 ]; Foley v. Foley, 120 Cal. 33 , [ 65 Am. St. Rep. 147 , 52 Pac. 122 ]; Stebbins v. Larson, 4 Cal. App. 482 , [ 88 Pac. 505 ].)

As this court has no jurisdiction of the appeal, we must dismiss the appeal. (Pedlar v. Stroud, 116 Cal. 461 , [ 48 Pac. 371 ]; Bienenfeld v. Fresno Milling Co., 82 Cal. 425 , [ 22 Pac. 1113 ].)

The appeal is dismissed:

Lennon, P. J., and Kerrigan, J., concurred.

Cases cited

Agard v. Valencia 39 Cal. 292 Cal. p. 205
Hibberd v. Smith 39 Cal. 145 Cal. p. 205
Fortain v. Smith 114 Cal. 494 Cal. 1896-10-10 p. 205
Wood, Curtis & Co. v. Mo. Pac. Ry. 152 Cal. 344 Cal. 1907-11-29 p. 205
Litch v. Kerns 8 Cal. App. 747 Cal. Dist. Ct. App. 1908-09-09 p. 205
Kimple v. Conway 69 Cal. 71 Cal. 1886-03-09 p. 205
Foley v. Foley 120 Cal. 33 Cal. 1898-02-04 p. 205
Stebbins v. Larson 4 Cal. App. 482 Cal. Dist. Ct. App. 1906-11-27 p. 205
Pedlar v. Stroud 116 Cal. 461 Cal. 1897-04-07 p. 205
Bienenfeld v. Fresno Milling Co. 82 Cal. 425 Cal. 1890-01-02 p. 205