121 P. 431 | Or. | 1912
Lead Opinion
Opinion by
This application was deemed sufficient by the trial court and it made an order vacating the decree and allowed the answer to be filed, from which order plaintiff appeals. Defendant has filed a motion in this court to dismiss the appeal, for the reason that the order is not a decree within the purview of Section 548, L. O. L., which provides that:
“A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit, so as to prevent a judgment or decree*259 therein, or a final order affecting a substantial right, and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree.”
The last clause of this section is an amendment adopted by the laws of 1907, p. 313, and, prior to such amendment, no appeal would lie from an order granting a new trial. Deering v. Quivey, 26 Or. 556 (38 Pac. 710). This amendment was held to be constitutional in Blumauer Frank Drug Co. v. Horticultural Fire Relief of Oregon, 59 Or. 58 (112 Pac. 1084).
The order appealed from does not determine the suit, and is not final unless made so by Section 548, and the only question involved here is whether this order is one contemplated by that amendment. New trials are provided for in Sections 173 to 178, L. O. L. A new trial is a re-examination of an issue of fact in the same court after judgment, and Sections 174, 175, provide when and in what manner a judgment may be vacated and a new trial granted; and an order therefor is one from which an appeal is allowed by the added clause of Section 548, but does not include an order made upon an application for leave to answer under Section 59. In the latter case no issues have been formed, and no trial had. Section 113, L. O. L., provides that, “A trial is the judicial examination of the issues between the parties,” and therefore the order from which the appeal is taken is not a decree within Section 548 as it was not an order for a new trial. See Sears v. Dunbar, 50 Or. 36 (91 Pac. 145). The case of Waymire v. Shipley, 52 Or. 465 (97 Pac. 807), relied upon by plaintiff as holding that such an order will be reviewed upon appeal, is a case in which the question was reviewed upon the appeal from the final judgment, and not an appeal directly from the order, and is therefore not in point.
Dismissed.
Decided March 19, 1912.
Rehearing
On Petition for Rehearing.
[121 Pac. 964.]
Opinion by
Plaintiff assigns four grounds of error in the opinion. The first and second depend upon whether the order is an appealable one under Section 548, L. O. L. That question was fully disposed of in the opinion, but plaintiff now contends that the holding there is contrary to the one in
Counsel also cited Stivers v. Bykett, 56 Or. 565 (108 Pac. 1014: 109 Pac. 386), but in that case the order denied the motion to vacate, and of course, was final and determined defendant’s rights, which was also the case in Evans v. Evans, 60 Or. 195 (118 Pac. 177) ; Bowman v. Holman, 48 Or. 351 (86 Pac. 792) was an appeal from an order vacating a decree made under Section 103, L. O. L., and is directly in point. The effect of an order made under that section as to being appealable is identical with one made under Section 59.
The motion is denied.
Dismissed: Rehearing Denied.