Curran v. Giometti

FRANK CURRAN, Respondent, v. E. GIOMETTI, Appellant.

COUNSEL

L. B. Fowler for Appellant.

F. W. Docker and Laurence B. Myers for Respondent.

OPINION

Marks, J.

Plaintiff brought this action in the Justice's Court of the third Township, County of Fresno, California, on May 27, 1935, to recover $250 from defendant. On June 18, 1935, defendant filed an answer and counterclaim or cross-complaint in the same court seeking recovery of $250 from plaintiff, to which plaintiff demurred both generally and specially. The record shows that on January 14, 1936, a judge of the Superior Court of Fresno County sustained with leave to amend a demurrer "to the second amended counterclaim and cross-complaint of the defendant". This pleading is not in the record. A third amended cross-complaint was filed on February 18, 1936, wherein defendant sought recovery from plaintiff of $15,250. On April 25, 1936, a judge of the superior court sustained a demurrer to this pleading without leave to amend. On June 17, 1936, defendant gave, under the alternative method, the following notice of appeal:

"NOTICE IS HEREBY GIVEN that the defendant, E. Giometti, hereby appeals to the District Court of Appeal of the State of California, Fourth Appellate District, from [20 Cal. App. 2d 406] that certain judgment made and entered in the above entitled court, on the 25th day of April, 1936, in favor of the plaintiff and against the defendant sustaining the demurrer of the plaintiff to the third amended counter claim and cross complaint of the defendant, and the defendant appeals from the whole of said judgment."

[1] The record does not contain any judgment roll. (Secs. 670, 950, 953a, Code Civ. Proc.) There is no judgment in the record. The judgment appealed from is a necessary part of the record on appeal. (2 Cal.Jur. 517.)

While the notice of appeal states that the appeal is taken from a judgment, the particular reference in the notice is to the order sustaining the demurrer. As there is no judgment in the record, and this order is particularly referred to in the notice of appeal, we take it that defendant is endeavoring to have us review this order sustaining the demurrer. Such an order is not appealable. ((Sec. 963, Code Civ. Proc.)

If, as we believe, the appeal is from the order sustaining the demurrer, we must dismiss the appeal as taken from a nonappealable order. If there was a final judgment rendered in the case defendant has failed to present a proper record upon which we can review the judgment and we can dismiss the appeal for that reason. (Sec. 954, Code Civ. Proc.)

The appeal is dismissed.

Barnard, P. J., and Jennings, J., concurred.