Curnutt v. Holk

California Court of Appeal

Curnutt v. Holk

203 Cal. App. 2d 6, 21 Cal. Rptr. 224, 1962 Cal. App. LEXIS 2327

CourtCalifornia Court of Appeal

DecidedApril 26, 1962

DocketCiv. 25473

StatusPublished

Cited by14 cases

This text of 203 Cal. App. 2d 6 (Curnutt v. Holk) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Curnutt v. Holk, 203 Cal. App. 2d 6, 21 Cal. Rptr. 224, 1962 Cal. App. LEXIS 2327 (Cal. Ct. App. 1962).

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Opinion

FILES, J.

Plaintiff has attempted to appeal from an order sustaining a demurrer to the complaint without leave to amend. That order is not appealable. (Cole v. Rush, 40 Cal.2d 178 [252 P.2d 1].) A notice of appeal from such a nonappealable order may be liberally construed as an appeal from the judgment if there is a judgment. (Evola v. Wendt Construction Co., 158 Cal.App.2d 658 [323 P.2d 158]; Smith v. Smith, 126 Cal.App.2d 194 [272 P.2d 118] ; Crane v. Livingston, 98 Cal.App.2d 699 [220 P.2d 744].) The record here contains a document signed by the trial judge entitled “Order Sustaining Demurrer” which orders that “the above action be and the same is hereby dismissed.” This document would constitute a judgment if entered in the judgment book, but the record shows no such entry. “In no case is a judgment effectual for any purpose until entered.” (Code Civ. Proc., § 664.) Prior to entry there is no assurance that the trial judge may not reconsider his decision. (Phillips v. Phillips, 41 Cal.2d 869, 874 [264 P.2d 926]; Adoption of Bird, 183 Cal.App.2d 140, 144 [6 Cal.Rptr. 675].)

The appeal is dismissed.

Shinn, P. J., and Ford, J., concurred.

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FILES, J.

Plaintiff has attempted to appeal from an order sustaining a demurrer to the complaint without leave to amend. That order is not appealable. (Cole v. Rush, 40 Cal.2d 178 [252 P.2d 1].) A notice of appeal from such a nonappealable order may be liberally construed as an appeal from the judgment if there is a judgment. (Evola v. Wendt Construction Co., 158 Cal.App.2d 658 [323 P.2d 158]; Smith v. Smith, 126 Cal.App.2d 194 [272 P.2d 118] ; Crane v. Livingston, 98 Cal.App.2d 699 [220 P.2d 744].) The record here contains a document signed by the trial judge entitled “Order Sustaining Demurrer” which orders that “the above action be and the same is hereby dismissed.” This document would constitute a judgment if entered in the judgment book, but the record shows no such entry. “In no case is a judgment effectual for any purpose until entered.” (Code Civ. Proc., § 664.) Prior to entry there is no assurance that the trial judge may not reconsider his decision. (Phillips v. Phillips, 41 Cal.2d 869, 874 [264 P.2d 926]; Adoption of Bird, 183 Cal.App.2d 140, 144 [6 Cal.Rptr. 675].)

The appeal is dismissed.

Shinn, P. J., and Ford, J., concurred.

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203 Cal. App. 2d 6, 21 Cal. Rptr. 224, 1962 Cal. App. LEXIS 2327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curnutt-v-holk-calctapp-1962.

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