C. S. BALDWIN, Appellant, v. F. O. WALLS, Treasurer of the Town of Alturas, Respondent

[Civ. No. 1141. Third Appellate District. November 25, 1913.] C. S. BALDWIN, Appellant, v. F. O. WALLS, Treasurer of the Town of Alturas, Respondent. Appeal — Order Sustaining Demurrer to Amended Complaint— Whether Appealable.—An order sustaining the defendant’s demurrer to _ the plaintiff’s amended complaint is not appealable. The judgment is itself an adjudication upon the demurrer; and it is only from the judgment, and not from the order sustaining the demurrer, that the plaintiff could appeal. APPEAL from an order of the Superior Court of Modoc County sustaining a demurrer. Clarence A. Raker, Judge. The facts are stated in the opinion of the court. C. S. Baldwin, and N. A. Cornish, for Appellant. Jamison & Wylie, for Respondent. [MAJORITY — BURNETT, J.] BURNETT, J. The notice of appeal specifies that “plaintiff C. S. Baldwin, in the above entitled action, hereby appeals to the supreme court of said state of California, from the order of the superior court of said county of Modoc, sustaining defendant’s demurrer to plaintiff’s amended complaint in said action. C It is well settled that such order is not - appealable. (Code Civ. Proc., sec. 939; Agard v. Valencia, 39 Cal. 292; Ashley v. Olmstead, 54 Cal. 616; Hadsall v. Case, 15 Cal. App. 541, [115 Pac. 330].) As stated in the Agard case: “The judgment is itself an adjudication upon the demurrer; and it is only from the judgment, and not from the order sustaining the demurrer, that the plaintiff could appeal.” The purported appeal must be dismissed and it is so ordered. Chipman, P. J., and Hart, J. concurred.