Stebbins v. Larson

This action is brought to enforce specific performance of a contract. Upon the trial, at the conclusion of the plaintiff's evidence, the defendant moved for a nonsuit upon certain grounds stated in said motion. The motion seems to have been granted. The only recital in relation thereto that we find in the transcript on appeal is as follows:

"Minutes Superior Court. Dept. 2. "November 2, 1905.

"ORDER GRANTING MOTION FOR NONSUIT.

"(Title of Cause.)

"Defendant's motion for nonsuit is granted and judgment of nonsuit is ordered."

The notice of appeal is "from a judgment of nonsuit therein made and entered in the said superior court on the second day of November, 1905, in favor of the defendant in said action and against said plaintiff, and from the whole thereof." We find nothing in the transcript indicating that any final judgment was ever entered in the case, except as above quoted. The order quoted above does not purport to be, and is not in fact, a final judgment in the case, and under the law no appeal is permissible from either an order of nonsuit or from an order directing judgment on a nonsuit. (Kimple v. Conway, 69 Cal. 71, [10 P. 189].) Nor can we entertain an appeal from a judgment of nonsuit where the transcript fails to set out or disclose a final judgment. (Granger v. Richards, 126 Cal. 635, [59 P. 118]. See, also, Estate of Mores, 143 Cal. 493, [77 P. 407].)

Upon the authority of the foregoing cases the appeal is dismissed.

Smith, J., and Allen, J., concurred.