WILLIAM D. KEYSER, Appellant, v. ELIZA TAYLOR et al., Respondents
Keyser v. Taylor
WILLIAM D. KEYSER, Appellant, v. ELIZA TAYLOR et al., Respondents.
WILLIAM D. KEYSER, Appellant, v. ELIZA TAYLOR et al., Respondents.
No Appeal from Order Sustaining a Demurrer. An appeal does not lie from the action of a district court in simply sustaining a demurrer; there must be a final judgment in such case before an appeal can be taken.
Dismissal of Appeal. Where the record on appeal discloses simply the sustaining of a demurrer, without showing a judgment, the appeal will be dismissed.
Appeal from the District Court of the Second Judicial District, Douglas County.
This was a suit, purporting to be in equity, to recover three hundred and forty-four dollars and fifty-three cents, alleged to have been loaned by plaintiff to Eliza Taylor before her marriage with her codefendant A. M. Taylor, and to have the judgment therefor declared a lien upon, and for the sale, for the payment of the same, of certain real estate in Douglas County, the separate property of Eliza Taylor, her title to which was alleged to have been perfected with the money loaned.
The defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action against them, or either of them; and the demurrer was sustained.
The notice of appeal was “ from the ruling, order, and judgment,” etc., “ sustaining the demurrer,” etc. The order and exceptions thereto were contained in the transcript, but no final judgment, or anything to show that one had ever been rendered. ■
Doyle and Tebbs, for Appellant.
Robert M. Clarke, for Respondents.
By the Court,
Lewis, C. J.
No judgment appears to have been rendered by the Court below in this action. The record shows that the demurrer to the complaint was sustained, but whether judgment was rendered against the plaintiff, or whether he was allowed to amend his pleading does not appear.
The statute does not authorize an appeal from the action of the Court simply sustaining a demurrer. There must in such case be a final judgment before an appeal can be taken. (Practice Act, Sec. 285. Moulton v. Ellmaker, 30 Cal. 527.)
Appeal dismissed.