State v. Thomas
32 Or. App. 85
Or. Ct. App.
1978
Check Treatment
JOHNSON, J.

The state seeks to appeal from a trial court order sustaining defendant’s demurrer to a uniform traffic citation and complaint. An order which merely sustains a demurrer and does not dismiss or set aside the complaint is not an appealable order under ORS 157.081 and ORS 138.060, which provides in part:

"The state may take an appeal from the circuit court to the Court of Appeals from:
"(1) An order made prior to trial dismissing or setting aside the accusatory instrument; " * * * * *"1

Appeal dismissed.

This was also the rule under former ORS 138.060. See State v. Cloran, 233 Or 400, 374 P2d 748, 377 P2d 911, 378 P2d 961 (1963); State of Oregon v. Davis, 207 Or 525, 296 P2d 240 (1956); State of Oregon v. Berry and Walker, 204 Or 69, 267 P2d 993, 267 P2d 995, 282 P2d 344, 282 P2d 347 (1955); State of Oregon v. Brown, 5 Or 119 (1873).