Madsen v. Turlock Irrigation Dist.

Annotate this Case
[Civ. No. 6642. Third Dist. Jan. 21, 1943.]

I. B. MADSEN et al., Appellants, v. TURLOCK IRRIGATION DISTRICT, Respondent.


F. M. Ostrander for Appellants.

Griffin & Boone for Respondent.



The plaintiff has attempted to appeal from an order sustaining defendant's demurrer to the complaint without leave to amend the pleading. There is no appeal from that order. It does not appear that a judgment was entered pursuant to that order. The record contains no reference to a judgment.

[1] The purported appeal in this case was prematurely and erroneously taken from the order sustaining the demurrer without leave to amend. The right of appeal is statutory. No right of appeal exists unless it is found either in the Constitution or in enacted statutes. (2 Cal.Jur. 111, § 4.) It has been uniformly held a reviewing court is without jurisdiction to entertain a purported appeal from an order sustaining or overruling a demurrer to the complaint, even though it is made without leave to amend the pleading. (Rickert v. Zoeger, 169 Cal. 399 [146 P. 894]; Ham v. Los Angeles County, 46 Cal. App. 148, 151 [189 P. 462]; Braren v. Reliable Carpet Works, Inc., 125 Cal. App. 489 [13 P.2d 972]; Doran v. Sherman, 18 Cal. App. 2d 479 [64 P.2d 442]; 2 Cal.Jur. 156, § 26.) In the Rickert case, supra, which was based on a record which is exactly like the one which is involved in this case, it is said:

"An order sustaining or overruling a demurrer is not an appealable order. [Citing many cases.] This court is therefore without jurisdiction to act upon the so-called appeal and it must be dismissed."

The purported appeal is therefore dismissed. [56 Cal. App. 2d 743]