Opinion
Civ. No. 1141.
November 25, 1913.
APPEAL from an order of the Superior Court of Modoc County sustaining a demurrer. Clarence A. Raker, Judge.
The facts are stated in the opinion of the court.
C. S. Baldwin, and N. A. Cornish, for Appellant.
Jamison Wylie, for Respondent.
The notice of appeal specifies that "plaintiff C. S. Baldwin, in the above entitled action, hereby appeals to the supreme court of said state of California, from the order of the superior court of said county of Modoc, sustaining defendant's demurrer to plaintiff's amended complaint in said action."
It is well settled that such order is not appealable. (Code Civ. Proc., sec. 939; Agard v. Valencia, 39 Cal. 292; Ashley v. Olmstead, 54 Cal. 616; Hadsall v. Case, 15 Cal.App. 541, [ 115 P. 330].)
As stated in the Agard case: "The judgment is itself an adjudication upon the demurrer; and it is only from the judgment, and not from the order sustaining the demurrer, that the plaintiff could appeal."
The purported appeal must be dismissed and it is so ordered.
Chipman, P. J., and Hart, J. concurred.