Weiss v. Garofalo

California Court of Appeal

Weiss v. Garofalo

201 P.2d 845, 89 Cal. App. 2d 811, 1949 Cal. App. LEXIS 1155

CourtCalifornia Court of Appeal

DecidedJanuary 25, 1949

DocketCiv. 7530

StatusPublished

Cited by5 cases

This text of 201 P.2d 845 (Weiss v. Garofalo) 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

Weiss v. Garofalo, 201 P.2d 845, 89 Cal. App. 2d 811, 1949 Cal. App. LEXIS 1155 (Cal. Ct. App. 1949).

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Opinion

PEEK, J.

Plaintiff, by his complaint, sought to set aside a trustees’ sale, to have the trustees’ deed declared void and of no effect, to have title to the real property involved quieted in himself, and for damages. Defendants’ demurrer to plaintiff’s fifth amended complaint was sustained without leave to amend. Thereafter plaintiff appealed from “the order” sustaining said demurrer but not from the judgment which was subsequently entered.

An appeal being wholly dependent upon and governed by the statutory (or constitutional) enactments relative thereto (2 Cal.Jur. p. 111, § 4) the exercise of the right so conferred must be strictly followed. Hence, where, as in the present case, a purported appeal is taken from an order sustaining a demurrer without leave to amend, which is not an appealable order, this court is without jurisdiction to act thereon (Madsen v. Turlock Irrigation Dist., 56 Cal.App.2d 742 [133 P.2d 416]), and such an appeal must be dismissed. It is so ordered.

Adams, P. J., and Thompson, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied March 24, 1949. Carter, J., voted for a hearing.

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PEEK, J.

Plaintiff, by his complaint, sought to set aside a trustees’ sale, to have the trustees’ deed declared void and of no effect, to have title to the real property involved quieted in himself, and for damages. Defendants’ demurrer to plaintiff’s fifth amended complaint was sustained without leave to amend. Thereafter plaintiff appealed from “the order” sustaining said demurrer but not from the judgment which was subsequently entered.

An appeal being wholly dependent upon and governed by the statutory (or constitutional) enactments relative thereto (2 Cal.Jur. p. 111, § 4) the exercise of the right so conferred must be strictly followed. Hence, where, as in the present case, a purported appeal is taken from an order sustaining a demurrer without leave to amend, which is not an appealable order, this court is without jurisdiction to act thereon (Madsen v. Turlock Irrigation Dist., 56 Cal.App.2d 742 [133 P.2d 416]), and such an appeal must be dismissed. It is so ordered.

Adams, P. J., and Thompson, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied March 24, 1949. Carter, J., voted for a hearing.

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Bluebook (online)

201 P.2d 845, 89 Cal. App. 2d 811, 1949 Cal. App. LEXIS 1155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weiss-v-garofalo-calctapp-1949.

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