Madsen v. Turlock Irrigation District

California Court of Appeal

Madsen v. Turlock Irrigation District

133 P.2d 416, 56 Cal. App. 2d 742, 1943 Cal. App. LEXIS 241

CourtCalifornia Court of Appeal

DecidedJanuary 21, 1943

DocketCiv. No. 6642

StatusPublished

Cited by6 cases

This text of 133 P.2d 416 (Madsen v. Turlock Irrigation District) 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.

Bluebook

Madsen v. Turlock Irrigation District, 133 P.2d 416, 56 Cal. App. 2d 742, 1943 Cal. App. LEXIS 241 (Cal. Ct. App. 1943).

Pincite

Opinion

THE COURT.

The plaintiff has attempted to appeal from an order sustaining defendant’s demurrer to the complaint without leave to amend the pleading. There is no appeal from that order. It does not appear that a judgment was entered pursuant to that order. The record contains no reference to a judgment.

The purported appeal in this ease was prematurely and erroneously taken from the order sustaining the demurrer without leave to amend. The right of appeal is statutory. No right of appeal exists unless it is found either in the Constitution or in enacted statutes. (2 Cal. Jur. Ill, § 4.) It has been uniformly held a reviewing court is without jurisdiction to entertain a purported appeal from an order sustaining or overruling a demurrer to the complaint, even though it is made without leave to amend the pleading. (Rickert v. Zoeger, 169 Cal. 399 [146 P. 894]; Ham v. Los Angeles County, 46 Cal.App. 148, 151 [189 P. 462]; Braren v. Reliable Carpet Works, Inc., 125 Cal.App. 489 [13 P.2d 972]; Doran v. Sherman, 18 Cal.App.2d 479 [64 P.2d 442]; 2 Cal. Jur. 156, § 26.) In the Rickert case, supra, which was based on a record which is exactly like the one which is involved in this case, it is said :

“An order sustaining or overruling a demurrer is not an appealable order. [Citing many cases.] This court is therefore without jurisdiction to act upon the so-called appeal and it must be dismissed.”

The purported appeal is therefore dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

THE COURT.

The plaintiff has attempted to appeal from an order sustaining defendant’s demurrer to the complaint without leave to amend the pleading. There is no appeal from that order. It does not appear that a judgment was entered pursuant to that order. The record contains no reference to a judgment.

The purported appeal in this ease was prematurely and erroneously taken from the order sustaining the demurrer without leave to amend. The right of appeal is statutory. No right of appeal exists unless it is found either in the Constitution or in enacted statutes. (2 Cal. Jur. Ill, § 4.) It has been uniformly held a reviewing court is without jurisdiction to entertain a purported appeal from an order sustaining or overruling a demurrer to the complaint, even though it is made without leave to amend the pleading. (Rickert v. Zoeger, 169 Cal. 399 [146 P. 894]; Ham v. Los Angeles County, 46 Cal.App. 148, 151 [189 P. 462]; Braren v. Reliable Carpet Works, Inc., 125 Cal.App. 489 [13 P.2d 972]; Doran v. Sherman, 18 Cal.App.2d 479 [64 P.2d 442]; 2 Cal. Jur. 156, § 26.) In the Rickert case, supra, which was based on a record which is exactly like the one which is involved in this case, it is said :

“An order sustaining or overruling a demurrer is not an appealable order. [Citing many cases.] This court is therefore without jurisdiction to act upon the so-called appeal and it must be dismissed.”

The purported appeal is therefore dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

133 P.2d 416, 56 Cal. App. 2d 742, 1943 Cal. App. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/madsen-v-turlock-irrigation-district-calctapp-1943.

Opinion

Related

Cite This Page — Counsel Stack