92 P. 868 | Cal. | 1907
This is an action to recover the value of two carloads of potatoes, alleged to be worth $587.94, shipped by plaintiff over the railroads of defendants, common carriers, and alleged to have been damaged while in the custody of said carriers, by reason of their negligence. Defendants interposed demurrers to the second amended complaint on the grounds of want of facts to constitute a cause of action, want of jurisdiction over the persons of defendants, also of ambiguity, uncertainty, unintelligibility, and that the action is barred by a provision of our statute of limitations. On March 2, 1905, these demurrers, after argument, were sustained by the trial court, with leave to plaintiff to amend its complaint within twenty days. On the same day motions to strike out certain portions of such complaint were granted in part. Orders so disposing of demurrers and motions to strike out were thereupon entered on the minutes. On March 10, 1905, plaintiff having notified defendants and the court that it would not amend and elected to stand on the second amended complaint as to which the demurrers had been sustained, the court rendered judgment in the following form: —
"In the above entitled action the respective demurrers of the defendant, Missouri Pacific Railway Company, and St. Louis, Iron Mountain Southern Railway Company, to the second amended complaint having been sustained and plaintiff allowed 20 days in which to amend, and plaintiff having elected in writing not to amend but to stand on the pleading as filed, it is ordered that the leave heretofore granted to amend be withdrawn, and the demurrers having been sustained, it is ordered that the action be dismissed and defendants recover their costs.
"March 10, 1905. "J.W. HUGHES, Judge."
This judgment was on the same day spread at length in writing on the courtroom blotter or civil minutes of the court and on the register of actions, and prior to April 1, 1905, was spread at length in writing in the minutes of the court. It was not entered in the judgment-book, the book designated by law for the entry of judgments (Code Civ. Proc., sec.
No appeal lies, under our law, from an order sustaining or overruling a demurrer, or from an order made on a motion to strike out portions of a pleading, and such orders are reviewable only on appeal from the judgment.
It must be taken as settled that under subdivision 1 of section 939 of the Code of Civil Procedure, prescribing that an appeal may be taken from a final judgment in an action or special proceeding "within six months after the entry of judgment," the appellate court cannot entertain an appeal from such a judgment where such appeal was taken before the actual entry of the judgment in the book wherein it is required by law to be entered of record. (See Estate of More,
There is nothing contained in the record which can be held to operate as an estoppel upon defendants to show the date of actual entry of the judgment, as in the cases of Estate of Pichoir,
The judgment not having been entered in the judgment-book prior to the appeal, it would appear, then, that the only question in this connection is whether such judgment-book was the place designated by law for its entry. Section
It is urged that this judgment is simply one of dismissal of an action, and that as to judgments of dismissal special provision is elsewhere made, making the minutes of the court the proper place for the entry. The statute relied on is section
The judgment before us, however, does not show a dismissal of the character referred to by these decisions as covered by the special provision of section
We are satisfied that the place designated by law for the entry of this judgment was the judgment-book provided by section
The appeal is dismissed.
McFarland, J., Sloss, J., Shaw, J., Lorigan, J., and Henshaw, J., concurred.
Rehearing denied.