Carley v. City of Santa Rosa

Annotate this Case
[Civ. No. 9208. Third Dist. Oct. 4, 1957.]

C. CARLEY et al., Appellants, v. THE CITY OF SANTA ROSA et al., Respondents.

COUNSEL

Timothy J. Crowley for Appellants.

Richard B. Maxwell, City Attorney, Edward Dermott, Assistant City Attorney, McKenzie, Arata & Murphy and L. G. Hitchcock for Respondents.

OPINION

SCHOTTKY, J.

Plaintiffs commenced an action to enjoin defendants from pumping water from certain wells and selling it to persons and properties foreign to the lands overlying the water bearing strata, thereby depleting plaintiffs' water supply. Defendants filed demurrers based upon the grounds that the complaint did not state a cause of action and that it was uncertain, ambiguous and unintelligible. The court made its order that the demurrers be sustained and that plaintiffs be allowed 10 days to amend their complaint. Plaintiffs did not amend their complaint and filed a notice of appeal from the orders sustaining the demurrers.

[1] Respondents have moved to dismiss the appeal upon the ground that the order appealed from is not an appealable order, and it is clear that said motion must be granted. No judgment of dismissal was entered in the action and the [154 Cal. App. 2d 215] appeal was prematurely and erroneously taken from the order sustaining the demurrers. No right of appeal exists unless it is found either in the Constitution or in enacted statutes. It has been uniformly held that a reviewing court is without jurisdiction to entertain a purported appeal from an order sustaining a demurrer to the complaint, with or without leave to amend. (Penland v. Golden, 107 Cal. App. 2d 256 [236 P.2d 823]; Cole v. Rush, 40 Cal. 2d 178 [252 P.2d 1].) See also 2 Witkin, Pleading and Practice 2162.

[2] Upon the oral argument appellants contended that they had a right to prosecute their appeal under subsection 2 of section 963 of the Code of Civil Procedure, which provides in part that an appeal may be taken from an order "refusing to grant or dissolve an injunction." We are convinced that the quoted language does not authorize an appeal under the circumstances shown by the record here but that it was intended to apply to a preliminary or intermediate order denying or granting an injunction, and not to an order sustaining or overruling a demurrer.

The order appealed from being a nonappealable order, this court is without jurisdiction to entertain it, and the purported appeal therefrom must be dismissed.

The appeal is dismissed.

Van Dyke, P. J., and Warne, J. pro tem., fn. * concurred.

FN *. Assigned by Chairman of Judicial Council.