Reset A A Font size: Print

District Court of Appeal, First District, Division 2, California.


Civ. 13723.

Decided: November 16, 1948

Doyle & Clecak and John R. Smith, all of San Francisco, for appellant. Arthur J. Healy, of San Francisco, Fred N. Howser, Atty. Gen., and Clarence A. Linn, Deputy Atty. Gen., for respondent.

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.’

An order sustaining a demurrer is not within the cases enumerated by section 963, Code Civ.Proc., and, therefore, is not appealable. Bryant v. Kelly, 203 Cal. 721, 265 P. 817; 2 Cal.Jur. pp. 156–157, and 1 Ten Year Supp. p. 290; 2 McKinney's Digest, Appeal and Error, sec. 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.