Parker v. Owen

GLADYS L. PARKER, Appellant, v. MARGARET M. OWEN, Respondent.

COUNSEL

Kimpton Ellis for Appellant.

Joseph N. Owen for Respondent.

OPINION

McCOMB, J.

This is a motion to dismiss an appeal from an order of the trial court denying plaintiff's motion to dismiss the action before any evidence was offered.

[1] This is the single question presented for determination:

Is an order denying a motion to dismiss an action before any evidence is offered an appealable order?

This question must be answered in the negative for the reason that an order denying a motion to dismiss an action before any evidence is received is not an appealable order. (Perry v. Magneson, 207 Cal. 617, 620 [279 P. 650]; Andersen v. Superior Court, 187 Cal. 95, 97 [200 P. 963]; Garthwaite v. Bank of Tulare, 134 Cal. 237, 243 [66 P. 326]; Halsey v. Sears, 90 Cal. App. 306 et seq. [265 P. 858]; Forrester v. Lawler, 14 Cal. App. 170, 171 [111 P. 284].)

In view of the foregoing rule the appeal must be dismissed. It is so ordered.

Moore, P. J., concurred.

WILSON, J.

I concur. It should be said, however, that the motion to dismiss ought to have been granted since the answer does not state an affirmative defense. [83 Cal. App. 2d 475]