Giant Powder Co. v. Oregon Western Ry. Co. , 54 Or. 325 ( 1909 )

On Motion to Dismiss.

1.

Per Curiam :

This suit was brought to foreclose a lien on the right of way and roadbed of defendant railway company for materials furnished a grading contractor. The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of suit. The demurrer was sustained. The entry of the record is as follows: “After consideration of the briefs filed in said cause, it is ordered and adjudged that said demurrer be and is hereby sustained.”' The plaintiff appealed to this court from such order, and the transcript was filed in due time. Thereafter the abstract and briefs were filed, and the cause came on for hearing in the regular order, whereupon defendant moved to dismiss the appeal, because it was prematurely taken.

Decided July 27, 1901).

We have no alternative but to sustain the motion. The order for which an appeal will lie is one which not only affects a substantial right of the party appealing, but which, in effect, determines the action or suit. It must conclude the parties as regards the subject-matter in the proceeding then pending: Henderson v. Morris, 5 Or. 24; State v. Security Savings Co. 28 Or. 410 (43 Pac. 162) ; Marquam v. Ross, 47 Or. 374 (78 Pac. 698: 83 Pac. 852: 86 Pac. 1) ; Sears v. Dunbar, 50 Or. 36 (91 Pac. 145). The order from which the appeal is taken in this case does not have that effect. It merely sustains the demurrer, without finally determining the suit in any way. The court still had jurisdiction of the case, with authority at its discretion to allow the complaint to be amended or a new pleading to be filed: Section 101, B. & C. Comp. Some further action of the court was necessary and required before the determination, as to the sufficiency of the complaint, could become final in the sense of the statute, governing appeals. As said by Mr. Justice McArthur, in a similar case: “There must be a judgment in the technical sense of the word on the demurrer”: State v. Brown, 5 Or. 119. And no such judgment or decree was rendered or made prior to the appeal.

The motion is allowed, and the appeal dismissed.

Dismissed.