Curnutt v. Holk

JAMES L. CURNUTT, Plaintiff and Appellant, v. HERBERT C. HOLK, Defendant and Respondent.

COUNSEL

Paul S. Garstang for Plaintiff and Appellant.

Parker, Stanbury, Reese & McGee and Daren T. Johnson for Defendant and Respondent.

OPINION

FILES, J.

Plaintiff has attempted to appeal from an order sustaining a demurrer to the complaint without leave to amend. [1] That order is not appealable. (Cole v. Rush, 40 Cal. 2d 178 [252 P.2d 1].) [2] A notice of appeal from such a nonappealable order may be liberally construed as an appeal from the judgment if there is a judgment. (Evola v. Wendt Construction Co., 158 Cal. App. 2d 658 [323 P.2d 158]; Smith v. Smith, 126 Cal. App. 2d 194 [272 P.2d 118]; Crane v. Livingston, 98 Cal. App. 2d 699 [220 P.2d 744].) [3] The record here contains a document signed by the trial judge entitled "Order Sustaining Demurrer" which orders that "the above action be and the same is hereby dismissed." This document would constitute a judgment if entered in the judgment book, but the record shows no such entry. [4] "In no case is a judgment effectual for any purpose until entered." (Code Civ. Proc., § 664.) Prior to entry there is no assurance that the trial judge may not reconsider his decision. (Phillips v. Phillips, 41 Cal. 2d 869, 874 [264 P.2d 926]; Adoption of Bird, 183 Cal. App. 2d 140, 144 [6 Cal. Rptr. 675].)

The appeal is dismissed.

Shinn, P. J., and Ford, J., concurred.