Curnutt v. Holk

Opinion — Files

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.