I am inclined to think that where a demurrer to the entire complaint is sustained, and judgment directed in favor of the defendant, without leave to the plaintiff to amend, as in this case, the decision, although made or placed in the form of an order, cannot be appealed from as an order, and that the only mode of reviewing it is by an appeal from the judgment, when perfected. The decision, whatever *277its form, is not properly an order, (Code, section 400,) but a judgment—the final determination of the rights of the parties in the action. (Code, section 245.) If so, the case is not embraced within section 349 of the Code, giving appeals from orders.
But if the view presented be erroneous, I am of opinion that the plaintiff is not entitled to any relief on this motion. The judgment was regular. No obligation rested upon the defendant to enter an order on the decision, give notice of it, and wait thirty days to allow the plaintiff to appeal, if he should think proper to do so. And the notice of appeal, which has been given, does not render the judgment irregular. If an appeal could be taken from the decision as from an order, as an absolute right, within thirty days after notice of the order, of which the plaintiff could not be deprived by entering a judgment, I see no reason why the judgment may not stand and the appeal be prosecuted—the appeal operating as a stay of proceedings. ■ If, however, the aid of the court is necessary, to give effect to the appeal, as from an order, then the application is to the discretion of the court, and it should not be granted, when, in effect, it is merely sought to avoid giving security, and an exposure to costs beyond those of a motion. So far as a review of the decision is concerned, it may be had by an appeal from the judgment.
The motion is denied with seven dollars costs.