Zellar v. Siemens

107 P. 1054, 58 Wash. 116, 1910 Wash. LEXIS 902

• Court: Washington Supreme Court
• Decided: March 30, 1910
• Docket: No. 8468
• Status: Published

Opinion

Parker, J.

On July 30, 1909, appellant filed in the superior court for Adams county a petition to vacate a default judgment, previously rendered against him in favor of respondent in that court. Respondent filed a general demurrer to the petition, alleging that it did not state facts sufficient to ■ constitute a cause for vacation of the judgment. On August 16, 1909, the demurrer, being submitted to the court upon argument, was sustained. The record brought here does not show any indication of appellant’s election to stand upon his petition and not plead further; nor does it show any order of dismissal of the petition, or any order finally disposing of the matter. The language of appellant’s notice of appeal is somewhat involved, and if the record before us showed any final disposition of the matter, we might infer from the language of the notice that it was an attempt to appeal from such final disposition; but since the order sustaining the demurrer is the last act of the court shown by the record before us, we must conclude that this is an attempt to appeal from that order sustaining the demurrer.

It is clear from the statute and our previous decisions that this appeal must be dismissed, because it is not taken from an appealable order. An order sustaining a demurrer is not final, and hence, not appealable. Rem. & Bal. Code, §1716; Potvin v. McCorvey, 1 Wash. 389, 25 Pac. 330; Olsen v. Newton, 3 Wash. 429, 30 Pac. 450; Mason County v. Dunbar, 10 Wash. 163, 38 Pac. 1003; Padley v. Gregg, 26 Wash. 322, 67 Pac. 72; State ex rel. Small v. Fleming, 37 Wash. 531, 79 Pac. 1115.

Appeal is dismissed.

Rudkin, C. J., Dunbar, Mount, and Crow, JJ., concur.