Curnutt v. Holk
JAMES L. CURNUTT, Plaintiff and Appellant, v. HERBERT C. HOLK, Defendant and Respondent
Opinion
FILES, J.
Plaintiff has attempted to appeal from an order sustaining a demurrer to the complaint without leave to amend. That order is not appealable.
(Cole v. Rush, 40 Cal.2d 178 [ 252 P.2d 1 ].) A notice of appeal from such a nonappealable order may be liberally construed as an appeal from the judgment if there is a judgment.
(Evola v. Wendt Construction Co., 158 Cal.App.2d 658 [ 323 P.2d 158 ];
Smith v. Smith, 126 Cal.App.2d 194 [ 272 P.2d 118 ] ;
Crane v. Livingston, 98 Cal.App.2d 699 [ 220 P.2d 744 ].) The record here contains a document signed by the trial judge entitled “Order Sustaining Demurrer” which orders that “the above action be and the same is hereby dismissed.” This document would constitute a judgment if entered in the judgment book, but the record shows no such entry. “In no case is a judgment effectual for any purpose until entered.” (Code Civ. Proc., § 664.) Prior to entry there is no assurance that the trial judge may not reconsider his decision.
(Phillips v. Phillips, 41 Cal.2d 869, 874 [264 P.2d 926]; Adoption of Bird, 183 Cal.App.2d 140, 144 [ 6 Cal.Rptr. 675 ].)
The appeal is dismissed.
Shinn, P. J., and Ford, J., concurred.
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