Carley v. City of Santa Rosa

Decision Date04 October 1957
Citation154 Cal.App.2d 214,315 P.2d 905
PartiesC. CARLEY and Mae Carley, his wife, Hillcone Steamship Company, a Nevada Corporation, and Walter Hefty, Plaintiffs and Appellants, v. The CITY OF SANTA ROSA, a Political Subdivision, The Board of Public Utilities of The City of Santa Rosa, Sam Hood, Fred S. Rosenberg, Robert Bishop, P. H. Mulcahy and Mervin Daw, members of the said Board of Public Utilities, Clay Fisher and Beatrice A. Fisher, his wife, Allan MacDonald and Marian MacDonald, his wife, Defendants and Respondents. Civ. 9208.
CourtCalifornia Court of Appeals Court of Appeals

Timothy J. Crowley, Santa Rosa, for appellants.

Richard B. Maxwell, City Atty., Edward Dermott, Asst. City Atty., Santa Rosa, for respondents City and Utilities Bd.

McKenzie, Arata & Murphy, Santa Rosa, for respondents Fisher.

L. G. Hitchcock, Santa Rosa, for respondents MacDonald.

SCHOTTKY, Justice.

Plaintiffs commenced an action to enjoin defendants from pumping water from certain wells and selling it to persons and properties foreign to the lands overlying the water bearing strata, thereby depleting plaintiffs' water supply. Defendants filed demurrers based upon the grounds that the complaint did not state a cause of action and that it was uncertain, ambiguous and unintelligible. The court made its order that the demurrers be sustained and that plaintiffs be allowed ten days to amend their complaint. Plaintiffs did not amend their complaint and filed a notice of appeal from the order sustaining the demurrers.

Respondents have moved to dismiss the appeal upon the ground that the order appealed from is not an appealable order, and it is clear that said motion must be granted. No judgment of dismissal was entered in the action and the appeal was prematurely and erroneously taken from the order sustaining the demurrers. No right of appeal exists unless it is found either in the Constitution or in enacted statutes. It has been uniformly held that a reviewing court is without jurisdiction to entertain a purported appeal from an order sustaining a demurrer to the complaint, with or without leave to amend. Penland v. Golden, 107 Cal.App.2d 256, 236 P.2d 823; Cole v. Rush, 40 Cal.2d 178, 252 P.2d 1. See also 2 Witkins, Pleading and Practice 2162.

Upon the oral argument appellants contended that they had a right to prosecute their appeal under subsection 2 of section 963 of the Code of Civil Procedure, which provides in part that an appeal may be taken...

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10 cases
  • Leh v. General Petroleum Corporation
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 2 Abril 1964
    ...stage of the case is binding on no one, Stevens v. Key-Resistor Corp. (1960) 186 C.A.2d 325, 8 Cal.Rptr. 908; Carley v. City of Santa Rosa (1957) 154 C.A.2d 214, 315 P.2d 905; Curnutt v. Holk (1962) 203 A.C.A. 6 203 C.A.2d 6, 21 Cal.Rptr. 224; Phillips v. Phillips (1953) 41 Cal.2d 869, 874,......
  • Weinstock v. Eissler
    • United States
    • California Court of Appeals Court of Appeals
    • 22 Enero 1964
    ...with or without leave to amend is nonappealable and the appeal must be taken from the ensuing judgment. (Carley v. City of Santa Rosa (1957) 154 Cal.App.2d 214, 215, 315 P.2d 905; see also Evans v. Dabney (1951) 37 Cal.2d 758, 759, 235 P.2d 604; 3 Witkin, Cal.Procedure, p. 2162.) The attemp......
  • Seidner v. 1 Greenfield Owners Assn.
    • United States
    • California Court of Appeals Court of Appeals
    • 4 Agosto 1980
    ...it in whole or in part may only be reviewed on appeal from a final judgment. (Hibberd v. Smith, 39 Cal. 145; Carley v. Santa Rosa, 154 Cal.App.2d 213, 315 P.2d 905; Kennedy v. Owen, 85 Cal.App.2d 517, 193 P.2d 141.) However, it would appear here as though we have that type of situation whic......
  • Lagiss v. Contra Costa County
    • United States
    • California Court of Appeals Court of Appeals
    • 6 Diciembre 1963
    ...with leave to amend is not appealable. (Sousa v. Capital Co., 202 Cal.App.2d 221, 223, 20 Cal.Rptr. 598; Carley v. City of Santa Rosa, 154 Cal.App.2d 214, 214-215, 315 P.2d 905; Jeffers v. Screen Extras Guild, Inc., 107 Cal.App.2d 253, 254, 237 P.2d 4 Art. XI, § 18, in part provides: 'No co......
  • Request a trial to view additional results

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