Halsey v. Sears — 90 Cal. App. 306

Majority

p. 306

[Civ. No. 4608.

Second Appellate District, Division One.

March 21, 1928.]

GERALD C. HALSEY, Executor, etc., Respondent, v. W. A. SEARS, Appellant.

Max B. Jamison for Appellant.

Frank Lamberson and Geo. W. Smith for Respondent.

Appeal from an order denying appellant’s motion to dismiss under section 581b of the Code of Civil Procedure. A similar case was originally filed in Santa Cruz County and a change of venue granted to the superior court of Tulare County, and upon the plaintiff failing to pay the filing fee of the action within one year after the case was transferred such case was dismissed on motion of defendant and appellant herein on April 3, 1922. Plaintiff and respondent then filed the instant case in the superior court of Santa Cruz County, which was transferred again to the superior court of Tulare County, and this last filed case, known as No. 14227 in the superior court of Tulare County, is the case now before the court. The defendant and appellant filed a motion to dismiss the action “filed anew.” This motion was denied by the court, and from the order denying this motion the defendant and appellant appeals.

Under section 963 of the Code of Civil Procedure it is contended by respondent that the order denying the motion of dismissal in this case is not an appealable order. This section provides an appeal may be taken from the supe

p. 307

rior court in certain cases: “ 1. From a final judgment entered in an action, or special proceeding, commenced in a superior court, or brought into a superior court from another court; ... 2. .. . from any special order made after final judgment, ...” But we can find no provision providing for any appeal from an order either granting or denying a motion to dismiss. If the order had been an order granting the motion to dismiss and a judgment had been rendered thereon, an appeal would, of course, lie from such final judgment, but in the case at bar it is apparent that the question which appellant is attempting to raise in this court cannot be raised until a judgment has been rendered in the ease.

The appeal is therefore dismissed.

Conrey, P. J., and Houser, J., concurred.