Ah Kle v. McLean

Appeal from Order for Judgment — Dismissal of. — An appeal will not lie from an order for a judgment.

APPEAL from District Court, Idaho County. The dismissal of an action is a final judgment. (12 Am. & Eng. Eney. of Law, .65, note, and authorities there cited; Bowling v. Polach, 18 Cal. 628; Leese v. Sherwood, 21 Cal. 163; Black on Judgments, see. 27.) A dismissal of the plaintiff’s suit upon the merits is as conclusive upon the rights of the parties as any other judgment that might have been rendered in the ease. (Parrish v. Ferris, 2 Black, 606; Durant v. Essex Co., 7 Wall. 107; Case v. Beauregard, 101 U. S. 688.) An order sustaining a demurrer and dismissing an action is not an appealable order. (Idaho Rev. Stats., sec. 4807; Moulton v. Ellmaker, 30 Cal. 529; Sutter v. San Francisco, 36 Cal. 114; Daniels 'v. Lansdale, 38 Cal. 567; Hebira v. Smith3 39 Cal. 145; Agard v. Valencile, 39 Cal. 297; Ashley v. Olmstead, 54 Cal. 618; Moraga v. Emeric, 4 Cal. 308; Mordecai v. Lindsay, 19 How. 199.) An appeal cannot be taken from parts of two judgments and an order for judgment by one notice of appeal, and one undertaking. (People v. Custer, 61 Cal. 191.) As appears from the transcript in this ease there has been no entry of a final judgment in the action, therefore an appeal will not lie. (Idaho Rev. Stats., sec. 4807; 1 Black on Judgments, 106; McLaughlin v. Doherty, 54 Cal. 519; Gray v. Palmer, 28 Cal. 421; Hayne on New Trial and Appeal, 183; People v. Center, 66 Cal. 553, 5 Pac. 263, 6 Pac. 481.)