Bryson

This is an appeal from a judgment of dismissal entered on an order sustaining a demurrer to plaintiff’s third amended complaint without leave to amend. The order provided that if plaintiff desired he could move to be allowed to file a fourth amended complaint, provided he served with his notice of motion a copy of his fourth amended complaint stating a cause of action. Plaintiff elected to stand on his third amended complaint.

The third amended complaint consists of three alleged causes of action, and was filed July 20, 1923. It does not appear from the record at what date the original complaint was filed. The demurrer is both general and special. It is contended by appellant that the demurrer was sustained wholly on the ground that the complaint did not state facts sufficient to constitute a cause of action, for the reason that the court provided that a motion might be made to file a fourth amended complaint if a copy was filed with the notice of motion “stating a cause of action.” It does not otherwise appear in the rocord on -what ground the demurrer was sustained, and we do not think the foregoing provision sufficient to warrant the presumption that the trial court sustained…