Curnutt v. Holk

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[Civ. No. 25473. Second Dist., Div. Three. Apr. 26, 1962.]

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


Paul S. Garstang for Plaintiff and Appellant.

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



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., ยง 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.

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