Smith v. Smith

Plaintiffs move to dismiss the appeal of defendant and cross-complainant from judgment dismissing the cross-complaint based upon an order sustaining a demurrer to the cross-complaint without leave to amend, upon the ground that the judgment is nonappealable. Plaintiffs also move for *344 an order affirming said judgment on the same ground and on the ground that the appeal is frivolous.

Plaintiffs contend that the judgment is nonappealable because, the parties to the complaint and to the cross-complaint being the same, the judgment dismissing the cross-complaint does not finally dispose of anyone’s claims, for the complaint and the answer to it remain.

It is, indeed, the rule that a cross-complaint is not ordinarily considered sufficiently independent to allow a separate final judgment to be entered upon it, where the parties to the complaint and cross-complaint are identical, and appeal does not lie from judgment dismissing the cross-complaint. (Sjoberg v. Hastorf, 33 Cal.2d 116 [ 199 P.2d 668 ], and eases cited therein.) There is an exception, however, when the judgment appealed from finally disposes of the action as to the appellant. Thus, where judgment on the pleadings was…