Milburn v. Kennedy

287 P. 980, 105 Cal. App. 408, 1930 Cal. App. LEXIS 781

• Court: California Court of Appeal
• Decided: April 28, 1930
• Docket: Docket No. 4061.
• Status: Published

Opinion

PLUMMER, J.

The plaintiff instituted this action to recover the sum of $3,230 alleged to be due from the defendants as broker’s commissions. The defendants’ demurrer to the plaintiff’s complaint was sustained, without leave to amend. From the order sustaining the defendants’ demurrer the plaintiff has taken this appeal. The notice of appeal is in the following words, omitting the title:

“You, and each of you, will please take notice that the plaintiff, T. L. Milburn, hereby appeals from the order made on the 24th day of March, 1927, sustaining the defendants’ demurrer to plaintiff’s complaint without leave to plaintiff to amend his said complaint.” No judgment appears to have been entered in favor of the defendants following the entry of the order just referred to.

A reference to section 963 of the Code of Civil Procedure shows that no appeal lies from an order sustaining a demurrer. Had a judgment been entered and appealed from, then under the provisions of section 956 of the Code of Civil Procedure the order of the court sustaining the defendants’ demurrer could have been considered.

The plaintiff having attempted an appeal from a nonappealable order, it follows that this court has no jurisdiction, and the merits of the case as argued by counsel need not be considered.

The appeal is dismissed.

Thompson (R. L.), J., and Finch, P. J., concurred.