DORAN v. SHERMAN

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District Court of Appeal, First District, Division 1, California.

DORAN v. SHERMAN.

Civ. 10054.

Decided: January 13, 1937

Joseph M. Trusty and Henry J. Kleefisch, both of San Francisco, for appellant. Kenneth R. McDougall, of Palo Alto, for respondent.

Respondent obtained a judgment in the municipal court of the city and county of San Francisco against appellant for $500 damages in a personal injuries action; and thereafter appellant commenced the present suit in equity in the superior court to annul said judgment, claiming that the judgment was void for want of jurisdiction to hear and determine the action. The superior court sustained respondent's demurrer to the second amended complaint without leave to amend, and from the order entered in that behalf appellant has taken this appeal. In our opinion the appeal is wholly without merit.

The well–settled rule is that one must exhaust all of his legal remedies before he is entitled to redress in a court of equity, and that he may not invoke equitable aid where he fails to pursue his legal remedies because of negligence or a misapprehension of his rights. 10 Cal.Jur. 465, citing cases; Hogan v. Horsfall, 91 Cal. App. 37, 266 P. 1002. In the present case, appellant was afforded the adequate remedy of appeal from the municipal court's judgment (Code Civ.Proc. § 983, as amended by St.1935, p. 1963, section 983a, as added by St.1933, p. 1893, as amended by St.1935, p. 1963), but nowhere in her complaint nor on this appeal does she indicate that she attempted to exercise such remedy; nor is she in a position to complain of that part of the superior court's order disallowing further amendment to the complaint for the reason that so far as the record shows she made no request for leave further to amend. Consolidated R. & P. Co. v. Scarborough, 216 Cal. 698, 16 P.(2d) 268; Fitzpatrick v. Fidelity & Casualty Co. (Cal.Sup.) 60 P.(2d) 276.

Moreover, it has long since been established that no appeal lies from an order sustaining a demurrer to a complaint; that the only method of review in such cases is through an appeal from the final judgment; and that any attempted appeal from the order itself will be dismissed. Braren v. Reliable Carpet Works, Inc., 125 Cal.App. 489, 13 P.(2d) 972; Bekins V. & S. Co. v. State of California, 135 Cal.App. 738, 28 P.(2d) 61; Jordan v. Associated Discount Corp., 10 Cal.App.(2d) 96, 51 P. (2d) 1108; Rittersbacher v. Board of Supervisors, 220 Cal. 535, 32 P.(2d) 135. In the present case the appeal was taken from the minute order, which recited merely that “the court ordered demurrer to amended complaint sustained without leave to amend”; and so far as the record discloses, no final judgment was ever entered.

The appeal is therefore dismissed.

KNIGHT, Justice.

We concur: TYLER, P. J.; CASHIN, J.