PARKER v. OWEN (1948)

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

PARKER v. OWEN.

Civ. 16191.

Decided: February 05, 1948

Kimpton Ellis, of Los Angeles, for appellant. Joseph N. Owen, of Los Angeles, for respondent.

This is a motion to dismiss an appeal from an order of the trial court denying plaintiff's motion to dismiss the action before any evidence was offered.

This is the single question presented for determination:

Is an order denying a motion to dismiss an action before any evidence is offered an appealable order?

This question must be answered in the negative for the reason that an order denying a motion to dismiss an action before any evidence is received is not an appealable order. (Perry v. Magneson, 207 Cal. 617, 620, 279 P. 650; Andersen v. Superior Court, 187 Cal. 95, 97, 200 P. 963; Garthwaite v. Bank of Tulare, 134 Cal. 237, 243, 66 P. 326; Halsey v. Sears, 90 Cal.App. 306 et seq., 265 P. 858; Forrester v. Lawler, 14 Cal.App. 170, 171, 111 P. 284.)

In view of the foregoing rule the appeal must be dismissed. It is so ordered.

I concur.

It should be said, however, that the motion to dismiss ought to have been granted since the answer does not state an affirmative defense.

McCOMB, Justice.

MOORE, P. J., concurs.

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