Evans v. Dabney, 235 P.2d 604 (Cal. 1951). · Go Syfert
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Evans v. Dabney, 235 P.2d 604 (Cal. 1951). Cases Citing This Book View Copy Cite
32 citation events (12 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 1953 → 2026 · click a year to view as-of
1953 1989 2026
Top citers, strongest first. 21 distinct citers. How cited ↗
discussed Cited as authority (rule) Shaw v. Nations Title Co. CA2/5
Cal. Ct. App. · 2015 · confidence medium
Case No. B251553 Plaintiff’s September 11, 2013, notice of appeal in case no. 251553 purports to appeal from: (i) the trial court’s July 9 and 18, 2013, orders sustaining the demurrers of certain defendants with leave to amend; (ii) the trial court’s July 18, 2013, order granting the special motion to strike filed by the Khaliqs; and (iii) the trial court’s September 10, 2013, order denying plaintiff’s motion to extend.8 The orders sustaining the demurrers of certain defendants with leave to amend are nonappealable orders. “[I]t ‘is settled that an order sustaining a demurrer is …
discussed Cited as authority (rule) Angol v. LA Community College Dist. CA2/5
Cal. Ct. App. · 2013 · confidence medium
Appealability “[I]t ‘is settled that an order sustaining a demurrer is not appealable. [Citations.]’ (Evans v. Dabney (1951) 37 Cal.2d 758, 759 [ 235 P.2d 604 ].) ‘An appeal does not lie from an order sustaining a demurrer without leave to amend [citations], from an order sustaining a demurrer with leave to amend [citation], or from an order granting a motion for judgment on the pleadings [citation].’ (Singhania v. Uttarwar (2006) 136 Cal.App.4th 416, 425 [ 38 Cal.Rptr.3d 861 ].) Instead, an ‘“order sustaining a demurrer . . . is generally reviewable on appeal from the final judg…
discussed Cited as authority (rule) Shearin v. Brown
Cal. Ct. App. · 2013 · confidence medium
Appealability of Ruling on Demurrer Generally As plaintiff conceded in his opposition to the motion to dismiss, it “is settled that an order sustaining a demurrer is not appealable. [Citations.]” (Evans v. Dabney (1951) 37 Cal.2d 758, 759 [ 235 P.2d 604 ].) “An appeal does not lie from an order sustaining a demurrer without leave to amend [citations], from an order sustaining a demurrer with leave to amend [citation], or from an order granting a motion for judgment on the pleadings [citation].” (Singhania v. Uttarwar (2006) 136 Cal.App.4th 416, 425 [ 38 Cal.Rptr.3d 861 ].) Instead, an …
discussed Cited as authority (rule) Westamerica Bank v. Mbg Industries, Inc.
Cal. Ct. App. · 2007 · confidence medium
(See First *133 Security Bank of Cal. v. Paquet (2002) 98 Cal.App.4th 468, 473 [ 119 Cal.Rptr.2d 787 ]; Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437 [ 129 Cal.Rptr.2d 436 ]; Nicholson v. Henderson (1944) 25 Cal.2d 375, 378-381 [ 153 P.2d 945 ]; Sjoberg v. Hastorf( 1948) 33 Cal.2d 116, 118 [ 199 P.2d 668 ]; Evans v. Dabney (1951) 37 Cal.2d 758, 760 [ 235 P.2d 604 ]; Fleuret v. Hale Constr.
discussed Cited as authority (rule) Thaler v. Household Finance Corp.
Cal. Ct. App. · 2000 · confidence medium
(Evans v. Dabney (1951) 37 Cal.2d 758, 759 [ 235 P.2d 604 ].) However, it may be treated as a judgment for purposes of appeal when, like a formal judgment, it disposes of the action and precludes further proceedings.
discussed Cited as authority (rule) Daar v. Yellow Cab Co.
Cal. · 1967 · confidence medium
Section 963 provides that an appeal may be taken from a superior court from “a final judgment entered in an action, . . .’’In determining whether there has been a final judgment, sometimes a difficult question, we have long adhered to the rule “that the question, as affecting the right of appeal, is not what the form of the order or judgment may be, *699 but what is its legal effect. [Citations.]" (Howe v. Key System Transit Co. (1926) 198 Cal. 525, 531 [ 246 P. 39 ] ; Lyon v. Goss (1942) 19 Cal.2d 659, 670 [ 123 P.2d 11 ] ; Bakewell v. Bakewell (1942) 21 Cal.2d 224, 227 [ 130 P.2d 975…
discussed Cited as authority (rule) People Ex Rel. Dep't of Pub. Works v. Clausen
Cal. Ct. App. · 1967 · confidence medium
(Yandell v. City of Los Angeles, 214 Cal. 234, 235-236 [ 4 P.2d 947 ] ; Sjoberg v. Hastorf, 33 Cal.2d 116, 118 [ 199 P.2d 668 ]; Evans v. Dabney, 37 Cal.2d 758, 760 [ 235 P.2d 604 ] ; Keenan v. Dean, 134 Cal.App.2d 189, 191 [ 285 P.2d 300 ] ; Kennedy v. Owen, 85 Cal.App.2d 517, 519 [ 193 P.2d 141 ].) Where, on the other hand, the cross-complaint names new parties or codefendants the order striking a cross-complaint may constitute a final and appealable judgment, provided it adjudicates rights as between "the cross-complainant and the new parties or the codefendant cross-defendants.
discussed Cited as authority (rule) Bledsoe v. Informative Research
Cal. Ct. App. · 1967 · confidence medium
(Vibert v. Berger, 64 Cal.2d 65, 67 [ 48 Cal.Rptr. 886 , 410 P.2d 390 ]; Cole v. Rush, 40 Cal.2d 178 [ 252 P.2d 1 ] ; Evans v. Dabney, 37 Cal.2d 758, 759 [235 P.2d 604]; Beazell v. Schrader, 205 Cal.App.2d 673, 674 [ 23 Cal.Rptr. 189 ]; Curnutt v. Holk, 203 Cal.App.2d 6, 7 [ 21 Cal.Rptr. 224 ]; Dumm v. Pacific Valves, 146 Cal.App.2d 792, 794 [ 304 P.2d 738 ]; see Code Civ.
discussed Cited as authority (rule) Harris v. Spinali Auto Sales, Inc.
Cal. Ct. App. · 1962 · confidence medium
(Quinn v. Litten, 148 Cal.App.2d 631 [ 307 P.2d 90 ]; Clay v. Saute, 140 Cal.App.2d 681, 685 [ 295 P.2d 914 ].) Ordinarily only one final judgment as to the same parties is permissible in a single action (Evans v. Dabney, 37 Cal.2d 758, 760 [ 235 P.2d 604 ] ; Nicholson v. Henderson, 25 Cal.2d 375, 378 [ 153 P.2d 945 ] ; Bank of America v. Superior Court, 20 Cal.2d 697, 701 [ 128 P.2d 357 ]; Bank of America v. Lamb Finance Co., 145 Cal.App.2d 702, 715 [ 303 P.2d 86 ]), and the fact that the terms of the “agreed settlement” as stated to the court, and the judgment thereafter entered, did not…
cited Cited as authority (rule) Shank v. Los Gatos Associates
Cal. Ct. App. · 1961 · confidence medium
(Evans v. Dabney, 37 Cal.2d 758, 759 [ 235 P.2d 604 ].) An appeal in such eases must be taken from a judgment of dismissal.
discussed Cited as authority (rule) Stevens v. Key Resistor Corp.
Cal. Ct. App. · 1960 · confidence medium
A. Rose Co. v. Municipal Court, 176 Cal.App.2d 67, 74 [ 1 Cal.Rptr. 49 ] ; Keenan v. Dean, 134 Cal.App.2d 189, 191 [ 285 P.2d 300 ]) ; an order sustaining a demurrer without leave to amend (Evola v. Wendt Construction Co., 158 Cal.App.2d 658, 660 [ 323 P.2d 158 ]) ; and an order sustaining a demurrer (Evans v. Dabney, 37 Cal.2d 758, 759 [ 235 P.2d 604 ]).
cited Cited as authority (rule) Henry v. Law Firm of William Hillyer, Richard Crake & Oscar F. Irwin
Cal. Ct. App. · 1960 · confidence medium
(Evans v. Dabney, 37 Cal.2d 758, 759 [1] [ 235 P.2d 604 ].) An appeal in such cases must be taken from a judgment of dismissal.
cited Cited as authority (rule) Hill v. Wrather
Cal. Ct. App. · 1958 · confidence medium
(Evans v. Dabney, 37 Cal.2d 758, 760 [ 235 P.2d 604 ].) The material allegations of the cross-complaint are identical with those of the first and second counterclaims of defendants’ amended answer.
cited Cited as authority (rule) Futlick v. F. W. Woolworth Co.
Cal. Ct. App. · 1957 · confidence medium
(Cole v. Rush, 40 Cal.2d 178 [ 252 P.2d 1 ] ; Evans v. Dabney, 37 Cal.2d 758, 759 [ 235 P.2d 604 ]; Madsen v. Turlock Irr.
discussed Cited as authority (rule) Miller v. Stein
Cal. Ct. App. · 1956 · confidence medium
(Evans v. Dabney, 37 Cal.2d 758, 759 [ 235 P.2d 604 ]; Kennedy v. Owen, 85 Cal.App.2d 517, 520 [ 193 P.2d 141 ].) Since we have before us only an attempted appeal from a nonappealable order, which of itself makes no final disposition of any issues affecting the Steins, the correctness of the order can properly be determined only upon appeal from the final judgment.
discussed Cited as authority (rule) Scribner v. Bertmann
Cal. Ct. App. · 1954 · confidence medium
(Citing Stanton v. Superior Court, 202 Cal. 478 [ 261 P. 1001 ]; Delmuto v. Superior Court, 119 Cal.App. 590 [ 6 P.2d 1007 ]; Jones v. Clover, 24 Cal.App.2d 210 [ 74 P.2d 517 ]; McKannay v. McKannay, 68 Cal.App. 709, 713 [ 230 P. 218 ]; and Evans v. Dabney, 37 Cal.2d 758, 760 [ 235 P.2d 604 ].) It is from these so-called 11 Original Judgment” and “Amended Judgment” that plaintiffs have appealed.
discussed Cited as authority (rule) Cole v. Rush
Cal. · 1953 · confidence medium
Such an order is nonappealable (Evans v. Dabney (1951), 37 Cal.2d 758, 759 [ 235 P.2d 604 ], and authorities there cited; 3 Cal.Jur.2d 476), and this court must, therefore, dismiss the appeal of its own motion.
discussed Cited as authority (rule) Cole v. Rush
Cal. · 1953 · confidence medium
Such an order is nonappealable (Evans v. Dabney (1951), 37 Cal.2d 758, 759 [ 235 P.2d 604 ], and authorities there cited; 3 Cal.Jur.2d 476), and this court must, therefore, dismiss the appeal of its own motion.
discussed Cited as authority (rule) Cole v. Rush
Cal. · 1953 · confidence medium
Such an order is nonappealable (Evans v. Dabney (1951), 37 Cal.2d 758, 759 [ 235 P.2d 604 ], and authorities there cited; 3 Cal.Jur.2d 476), and this court must, therefore, dismiss the appeal of its own motion.
cited Cited "see" Singhania v. Uttarwar
Cal. Ct. App. · 2006 · signal: see · confidence high
Proc., § 904.1 subd. (a); see Evans v. Dabney (1951) 37 Cal.2d 758 [ 235 P.2d 604 ].) An appeal does not lie from an order sustaining a demurrer without leave to amend (I.
discussed Cited "see, e.g." Weinstock v. Eissler
Cal. Ct. App. · 1964 · signal: see also · confidence medium
(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 attempted appeal from the above minute order must be dismissed.
Retrieving the full opinion text from the archive…
ORVAL N. EVANS Et Al., Respondents,
v.
CLIFFORD R. DABNEY Et Al., Appellants
L. A. 21940.
California Supreme Court.
Sep 26, 1951.
235 P.2d 604
C. Paul Du Bois and John E. Sisson for Appellants., Dolley, Knight, Woods & Hightower and Roy P. Dolley for Respondents.
Schauer.
Cited by 30 opinions  |  Published
[*759] SCHAUER, J.

Plaintiffs, trustees under an inter vivos trust created March 24, 1930, brought this action for declaratory relief against Clifford R. Dabney and his wife, trustors and beneficiaries under the trust. Defendants answered, cross-complained, and moved to add other parties as cross-defendants. Plaintiffs demurred to the answer and cross-complaint. The trial court by minute order denied the motion to add parties, sustained the demurrer to the cross-complaint without leave to amend, and sustained the demurrer to the answer without leave to amend as to the defense of the statute of limitations. No judgment on the issues raised by the complaint and answer appears to have been entered. Defendants have noticed appeals from (1) the minute order insofar as it denies leave to bring in new parties as cross-defendants and sustains the demurrer to parts of defendants’ answer, and (2) an ensuing judgment decreeing solely “that cross-complainants take nothing by this action against cross-defendants and that said cross-defendants recover their costs.” We have concluded that the orders and judgment are not appealable and, therefore, the purported appeals must be dismissed.

It is settled that an order sustaining a demurrer is not appealable. (See People v. Adamson (1949), 33 Cal.2d 286, 288 [201 P.2d 537], and cases cited in 2 Cal.Jur., Appeal and Error, § 26, p. 156; 1 Cal.Jur. 10-Yr.Supp., pp. 289 et seq.; and Secondary Pocket Part.) And it has been held that an order denying a motion to bring in new cross-defendants was not appealable where the persons sought to be brought in were not parties, were not served, and did not appear, because the order adjudicated nothing as between defendants-cross-eomplainants and the persons sought to be brought in. (Kennedy v. Owen (1948), 85 Cal.App.2d 517, 520 [193 P.2d 141].) Defendants do not claim that the minute order denying their motion to bring in new cross-defendants is a final, or any, adjudication in favor of these persons who are not parties. Defendants argue that the order denying their motion, and the judgment that they take nothing by their cross-complaint, should be appealable because the controversy as to which plaintiffs seek declaratory relief and the matters which defendants wish tried in their cross-action all concern administration of the same trust and should be tried together. This amounts to nothing more than an argument that when an interlocutory ruling of the trial court is wrong it should be appealable.

[*760] The question whether there can be an independent, final, appealable judgment or order on a cross-complaint (which, as noted above, is the only judgment entered here) was considered in Sjoberg v. Hastorf (1948), 33 Cal.2d 116, 118 [199 P.2d 668]. This court concluded, “Under California procedure there is ordinarily only one final judgment in an action. [Citations.]. A cross-complaint is not considered sufficiently independent to allow a separate final judgment to be entered upon it [citations], unless the judgment or order on the cross-complaint may be considered final as to some of the parties. [Citations.]” The judgment here is not a final disposition of the matters which defendants seek to raise by their cross-complaint. However clearly erroneous some of the rulings complained of may appear to be, the questions which defendants have attempted to present on this appeal can properly be determined only on the appeal from the final judgment. ‘ ‘ Thus no greater hardship will result than in any case where a party is forced to stand trial because of an erroneous ruling of the trial court.” (P. 119 of 33 Cal.2d.)

For the reasons above stated, the purported appeals are dismissed.

Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., Traynor, J., and Spence, J., concurred.