86 P. 792 | Or. | 1906
On September 5, 1905, plaintiff recovered a judgment against the defendant by default in an action at law. On February 10, 1906, the judgment was, on defendant’s application, under Section 102, B. & C. Comp., set aside and vacated, and he was permitted to answer, for the reason that the judgment was taken against him through mistake, inadvertence and excusable neglect. From this order the plaintiff has appealed, and defendant moves to dismiss such appeal because the order from which it is taken is not appealable.
The statute provides that an appeal may be taken from a “final order affecting a substantial right” made after judgment or decree: B. & C. Comp. § 547. The order in question is not of that character. It is not a final order, but merely vacated the former judgment for the purpose of a trial upon the merits of the original action. It was within the power of the court to make, and is therefore not appealable: Deering v. Quivey, 26 Or. 556 (38 Pac. 710); Henrichsen v. Smith, 29 Or. 475 (42 Pac. 486, 44 Pac. 496) ; Hume v. Bowie, 148 U. S. 245 (13 Sup. Ct. 582, 37 L. Ed. 438). The motion is allowed.
Dismissed.
