Arnold v. Howell

SID W. ARNOLD, Appellant, v. HARRY EDWARD HOWELL et al., Respondents.

COUNSEL

Doyle & Clecak and John R. Smith for Appellant.

Fred N. Howser, Attorney General, Clarence A. Linn, Deputy Attorney General, and Arthur J. Healy for Respondents.

OPINION

THE COURT.

Appellant sued to set aside an order for the adoption of his daughter by respondent Alethea Anne Howell (a maternal aunt of the child) and Harry Edward Howell, her husband.

A general and special demurrer to the first amended complaint by the respondents Edith M. Williams, Harry Edward Howell and Alethea Anne Howell was sustained without leave to amend. Respondent State Department of Social Welfare did not demur, but filed an answer.

No judgment was entered in the case.

Within 60 days after the order had been made sustaining the demurrer, appellant filed a notice of appeal "from the order ... sustaining the demurrer to the First Amended Complaint without leave to amend and from the whole thereof."

[1] An order sustaining a demurrer is not within the cases enumerated by section 963, Code of Civil Procedure, and, therefore, is not appealable. (Bryant v. Kelly, 203 Cal. 721 [265 P. 817]; 2 Cal.Jur. pp. 156-157, and 1 Cal.Jur. 10-yr. Supp. p. 290; 2 McKinney's Digest, "Appeal and Error," § 40, pp. 141-142.) The ruling is reviewable on appeal from the judgment itself. (2 Cal.Jur. p. 157.)

Accordingly the appeal must be dismissed and it is so ordered. [88 Cal. App. 2d 527]