Hadsall v. Case

115 P. 330 | Cal. Ct. App. | 1911

By leave of court, Michael M. Fernandez filed his complaint in intervention in the above-entitled action. A demurrer interposed thereto was sustained; whereupon, within the time granted for so doing, he filed an amended complaint in intervention, to which both plaintiff and defendants interposed demurrers. The several demurrers were sustained without leave to amend, and the purported appeal is from the order sustaining the demurrers.

An appeal does not lie from an order sustaining a demurrer, but such ruling may be reviewed on an appeal from the judgment. (Code Civ. Proc., sec. 939; Ashley v. Olmstead, 54 Cal. 616;Agard v. Valencia, 39 Cal. 292.) The rules applicable to pleadings in general apply with equal force to pleadings in intervention. The demurrers interposed to the complaint of the intervenor raised an issue of law, which, upon trial, by sustaining the demurrers, the court determined in favor of the parties so demurring. Judgment against the intervenor, as in other cases where a demurrer to a complaint is sustained without leave to amend, should have followed, from which, inasmuch as to him it was a final determination of the case, he could have prosecuted his appeal at once and thus have the order of which he complains reviewed.

The purported appeal must be dismissed, and it is so ordered.

Allen, P. J., and James, J., concurred.