CURNUTT v. HOLK

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District Court of Appeal, Second District, Division 3, California.

James L. CURNUTT, Plaintiff and Appellant, v. Herbert C. HOLK, Defendant and Respondent.

Civ. 25473.

Decided: April 26, 1962

Paul S. Garstang, Santa Maria, for appellant. Parker, Stanbury, Reese & McGee and Daren T. Johnson, Los Angeles, for respondent.

Plaintiff has attempted to appeal from an order sustaining a demurrer to the complaint without leave to amend. That order is not appealable. (Cole v. Rush, 40 Cal.2d 178, 252 P.2d 1.) A notice of appeal from such a nonappealable order may be liberally construed as an appeal from the judgment if there is a judgment. (Evola v. Wendt Construction Co., 158 Cal.App.2d 658, 323 P.2d 158; Smith v. Smith, 126 Cal.App.2d 194, 272 P.2d 118; Crane v. Livingston, 98 Cal.App.2d 699, 220 P.2d 744.) The record here contains a document signed by the trial judge entitled ‘Order Sustaining Demurrer’ which orders that ‘the above action be and the same is hereby dismissed.’ This document would constitute a judgment if entered in the judgment book, but the record shows no such entry. ‘In no case is a judgment effectual for any purpose until entered.’ (Code Civ.Proc. § 664.) Prior to entry there is no assurance that the trial judge may not reconsider his decision. (Phillips v. Phillips, 41 Cal.2d 869, 874, 264 P.2d 926; Adoption of Bird, 183 Cal.App.2d 140, 144, 6 Cal.Rptr. 675.)

The appeal is dismissed.

FILES, Justice.

SHINN, P. J., and FORD, J., concur.

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