WEISS v. GAROFALO (1949)

District Court of Appeal, Third District, California.

WEISS v. GAROFALO et al.

Civ. 7530.

Decided: January 25, 1949

Leonardo S. Bacci, of San Francisco, for appellant. Richard W. Young and M. G. Hoffmann, both of Berkeley, and Brown, Ford & Cooney, of Colusa, for respondents.

Plaintiff, by his complaint, sought to set aside a trustees' sale, to have the trustees' deed declared void and of no effect, to have title to the real property involved quieted in himself, and for damages. Defendants' demurrer to plaintiff's fifth amended complaint was sustained without leave to amend. Thereafter plaintiff appealed from ‘the order’ sustaining said demurrer but not from the judgment which was subsequently entered.

An appeal being wholly dependent upon and governed by the statutory (or constitutional) enactments relative thereto (2 Cal.Jur. p. 111, sec. 4) the exercise of the right so conferred must be strictly followed. Hence, where, as in the present case, a purported appeal is taken from an order sustaining a demurrer without leave to amend, which is not an appealable order, this court is without jurisdiction to act thereon. Madsen v. Turlock Irrigation Dist., 56 Cal.App.2d 742, 133 P.2d 416, and such an appeal must be dismissed. It is so ordered.

PEEK, Justice.

ADAMS, P. J., and THOMPSON, J., concur. Hearing denied; CARTER, J., dissenting.

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