Evola v. Wendt Const. Co.

• Citation: 323 P.2d 158,158 Cal.App.2d 658
• Court: California Court of Appeals
• Decision Date: 26 March 1958
• Parties: John EVOLA, Plaintiff, and Appellant, v. WENDT CONSTRUCTION COMPANY, a corporation, and United Pacific Insurance Company, a corporation, Defendants, United Pacific Insurance Company, Respondent. Civ. 18116.

Page 158

323 P.2d 158

158 Cal.App.2d 658

John EVOLA, Plaintiff, and Appellant, v. WENDT CONSTRUCTION COMPANY, a corporation, and United Pacific Insurance Company, a corporation, Defendants, United Pacific Insurance Company, Respondent.

Civ. 18116.

District Court of Appeal, First District, Division 1, California.

March 26, 1958.

Sol S. Judson, Pittsburg, for appellant.

Weinstock, Anderson, Maloney & Chase, San Francisco, for respondent.

PETERS, Presiding Justice.

This is a motion to dismiss the appeal either because the order appealed from is nonappealable, or because the appeal, in any event, has been abandoned.

The plaintiff filed a two count complaint, the first count seeking judgment against Wendt Construction Company and its surety, United Pacific Insurance Company, and the second seeking judgment against Builders' Control Service. After a first amended complaint had been filed, the court on July 12, 1957, sustained, without leave to amend, a demurrer of the United Pacific Insurance Company to the first cause of action. On August 9, 1957, judgment by default was entered in favor of plaintiff and against Wendt Construction Company. On August 12, 1957, the plaintiff appealed 'from the Order Sustaining Demurrer Without Leave to Amend plaintiff's First Amended Complaint to First Cause of Action.' On September 6, 1957, the court entered its judgment dismissing the complaint against United Pacific Insurance Company. On November 13, 1957, the plaintiff filed an abandonment of his appeal with the county clerk 'without prejudice to any future appeal.' In the same day, he induced the trial court to enter a second judgment on its order of July 12th sustaining the demurrer without leave to amend. On November 14, 1957, plaintiff purported to appeal from that judgment.

Plaintiff then acquired knowledge of the entry of the first judgment. He now realized that the abandonment of his first appeal had been a mistake. On November 22, 1957, he filed a notice of motion to correct the date of entry of the judgment from September 5, 1957 (should be September 6th) to November 13, 1957, and to vacate the abandonment of the appeal. On December 4, 1957, the trial court denied the motion to correct the date of the judgment but granted the motion to vacate the abandonment of the appeal. After the plaintiff had filed his opening brief on the appeal defendant moved to dismiss the appeal on the grounds stated.

Without reference to what effect, if any, the abandonment of the appeal may have had, the first question presented is whether the appeal of August 12, 1957, can be considered an appeal from the judgment of September 6, 1957. There can be no doubt that the notice of appeal of August 12, 1957, was an attempt to appeal from a nonappealable order. An order sustaining a demurrer without leave to amend is a nonappealable order. Jeffers v. Screen Extras Guild, Inc., 107 Cal.App.2d 253, 237 P.2d 51; Kennedy v. Owen, 85 Cal.App.2d 517, 193 P.2d 141; Futlick v. F. W. Woolworth Co., 149 Cal.App.2d 296, 308 P.2d 405; Lavine v. Jessup, 48 Cal.2d 611, 311 P.2d 8. The appeal can properly be taken only from the judgment of dismissal. Such a judgment was not entered until September 6, 1957. No appeal was taken from that judgment within the 60 days provided by Rule 2(a) of the Rules on Appeal. Prior to 1951 there can be no doubt that under such circumstances the appeal from the order sustaining the demurrer would have to be dismissed. Schmidt v. Townsend, 103 Cal.App.2d 185, 229 P.2d 488. Prior to 1951 relief from the filing of a premature notice of appeal could only be granted under Rule 2(c) as it then read. The rule then provided:

'A notice of appeal filed prior to entry of the judgment, but after its rendition, shall be valid and shall be deemed to have been filed immediately after entry.' Of course, when the appeal is taken from the order sustaining a demurrer before judgment has been entered, this rule could not protect the appellant, because the then rule only applied where the notice of appeal was filed 'prior to entry of the judgment, but after its rendition.' That was the precise holding of Schmidt v. Townsend, 103 Cal.App.2d 185, 229 P.2d 488. But in 1951 a new sentence was added to Rule 2(c). That new sentence reads: 'A notice of appeal filed prior to rendition of the judgment, but after the judge has announced his intended ruling, may, in the discretion of the reviewing court for good cause, be treated as filed immediately after entry of the judgment.'

The rule, as thus amended, would seem to apply to the situation here presented. The notice of appeal was certainly filed 'prior to rendition of the judgment.' It is also clear that this was 'after the judge has announced his intended ruling' because he had already entered his order sustaining the demurrer without leave to amend. Thus, the instant situation falls directly and literally within the language of the rule.

Respondent urges, however, that the rule as amended was only intended to apply when the premature notice of appeal can be reasonably interpreted to describe the judgment subsequently entered, and cannot be used when the premature notice of appeal describes an order which is itself nonappealable. In the instant case the premature notice of appeal did state that the appeal was from the order sustaining the demurrer and there is no language in the notice that can be interpreted to refer to the judgment subsequently entered.

We do not agree with respondent. There may be many situations where a notice of appeal from a nonappealable order cannot and should not be treated to be a notice of appeal from a judgment subsequently entered. In many situations there might be doubts as to just what the appellant was seeking to have reviewed. But there is no doubt in the instant case. Clearly, the appellant was seeking to have reviewed the propriety of the order sustaining the demurrer without leave to amend. In fact, he so stated in the notice of appeal. He should have waited until a judgment was entered. But by incorrectly stating that he was appealing from the order instead of from the judgment, he should not be precluded from securing a review of what all concerned knew he was seeking to have reviewed. No one was misled. No prejudice to the respondent appears. Respondent is simply trying to take advantage of a mistake made by appellant. While respondent is not to be censured because of making this attempt, this court should not aid respondent unless compelled to do so by controlling principles of law. Even before 1951 this court held that an incorrect designation of the order appealed from and a wrong date would not invalidate a notice of appeal. Holden v. California Emp. Stabilization Comm., 101 Cal.App.2d 427, 225 P.2d 634.

There is case authority to support the position here taken. In Smith v. Smith, 126 Cal.App.2d 194, 272 P.2d 118, the trial court on May 20, 1953, sustained a de...