Rice v. Hansen , 27 Ariz. 529 ( 1925 )

This is an appeal from the following order:

"Let the record show that the demurrer of the defendants to the amended complaint is sustained."

Three days later, to wit, on October 25, 1923, the minute entries show this order:

"The record may show that the plaintiffs have ten days from this date to amend their complaint."

No amended complaint having been filed, the clerk of the superior court entered the default of the plaintiffs on November 6, 1923, but did not enter judgment, and within the proper time thereafter they gave notice of appeal from that certain order wherein and whereby the court "sustained the demurrer of the defendants to the amended complaint."

It is apparent that the only order this court can make is one of dismissal. There was no judgment from which the plaintiffs could appeal, for an order sustaining a demurrer is not a final order, within the meaning of the provisions of the statute relating to appeals.Hollingsworth v. Gazette Printing Co., 21 Ariz. 51, 185 P. 359;Adair et al. v. Williams et al., 24 Ariz. 422, 26 A.L.R. 278, 210 P. 853. And the same is true of an order overruling a general demurrer. Navajo-Apache Bank Trust Co. et al. v.Desmont et al., 17 Ariz. 472, 154 P. 206.

If plaintiffs felt that their complaint was good as against a general demurrer, they should have announced to the court that they would stand upon it, and have permitted judgment to be entered against them. The fact that they did not take advantage of the order allowing them to amend a second time cannot be construed as an election to stand upon their amended complaint; such a failure would rather lead to the inference that they had decided to prosecute their cause no further, in view of the fact that upon the sustaining of a demurrer to the complaint the usual practice is to inform the court that an amended pleading will not be filed, but that reliance will be had upon the one held insufficient. Judgment against a party making such an announcement follows as a matter of course, and an appeal therefrom brings up for review, if assigned as error, all intermediate orders and rulings of the superior court, and this would include the one sustaining the demurrer.

The appeal is dismissed.

ROSS and LOCKWOOD, JJ., concur.