Ter Har v. Backus , 256 Or. 288 ( 1970 )

473 P.2d 143 (1970)

William A. TER HAR, Appellant,
v.
Lorraine L. BACKUS and Guy Edward Backus, and Each of Them, Respondents.

Supreme Court of Oregon.

Argued and Submitted March 5, 1970. Decided August 5, 1970.

Steven T. Campbell, Seaside, argued the cause for appellant. On the brief were Shults, Cole & Campbell, Seaside.

Walter H. Sweek, Portland, argued the cause for respondents. On the brief were Vergeer, Samuels, Roehr & Sweek, Portland.

Before PERRY,^[*] C.J., and McALLISTER, SLOAN, O'CONNELL, DENECKE, HOLMAN, and TONGUE, JJ.

McALLISTER, Justice.

This action was filed on December 24, 1968, in Clatsop County to recover damages for personal injuries and property damage sustained by plaintiff in a collision that occurred on December 30, 1966, between his automobile and one owned by defendant Lorraine L. Backus and driven by defendant Guy Edward Backus. The complaint contained three causes of action separately stated; one for general and special damages on account of injuries to plaintiff's person, one for damage to plaintiff's automobile, and a third for the cost of towing and storing the automobile "pending its disposal."

An attempt was made to serve the defendants personally in Clatsop County without success. Thereafter plaintiff attempted to serve defendants by substituted service on the Director of the Department of Motor Vehicles as authorized by ORS 15.190. The defendants appeared specially and moved to quash that service. The substituted service was quashed by an order entered on May 28, 1969. The plaintiff filed a notice of appeal from that order.

An order quashing the service of summons is not "[a]n order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein." ORS 19.010 (2) (a). This court so held in Krauger v. Steelhammer, 183 Or. 697, 698, 195 P.2d 982 (1948), where we said:

"We are of the opinion that the motion [to dismiss the appeal] should be allowed. The order quashing the service is not ``an order affecting a substantial right, and which determines the action or suit so as to prevent a judgment or decree therein, * * *.'"

See, also, State ex rel. Sullivan v. Tazwell, 123 Or. 326, 333, 262 P. 220 (1927), where the court said:

"* * * The order sustaining the motion to quash the service is not a final order. It is not an order preventing a judgment or decree. * * *"

We are aware that the rule in other jurisdictions is not uniform. In at least one state, an order quashing service appears to be appealable as a matter of course. Tetley, Sletten & Dahl v. Rock Falls Mfg. Co., 176 Wis. 400, 187 N.W. 204 (1922). In others, such an order is appealable only if made on such grounds that it effectively disposes of the action, leaving the plaintiff no chance of proceeding in the case by obtaining new service or amending his complaint. Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945); Allred v. National Old Line Ins. Co., 245 Ark. 893, 435 S.W.2d 104 (1968); Hunt v. Tague, 205 Md. 369, 109 A.2d 80 (1954); Brown v. Lamb, 112 Ohio App. 116, 171 N.E.2d 191 (1960); Fairley v. Durkee's Famous Foods, 178 Wash. 141, 33 P.2d 1073 (1934). Still others hold, as this court has held, that an order quashing service of summons, regardless of the trial court's reasons, is not appealable. If the plaintiff cannot by any means proceed any further, or prefers not to do so, he must secure a judgment of dismissal in order to obtain review. Town of Wallins v. Luten Bridge Co., 291 Ky. 73, 163 S.W.2d 276 (1942); Busboom v. Gregory, 179 Neb. 254, 137 N.W.2d 825 (1965); Honerine Min. & Mill Co. v. Tallerday Steel Pipe & Tank Co., 30 Utah 449, 85 P. 626 (1906). Other cases are collected at 30 A.L.R. 2d 287, 300 et seq.

We think the rule last stated is the better one, being entirely in harmony with our reluctance to engage in piecemeal review. For a recent discussion of the reasons for adhering to this policy see Dlouhy v. Simpson Timber Co., 247 Or. 571, 431 P.2d 846 (1967).

An order quashing service of the summons is in some respects similar to an order sustaining a demurrer to a complaint. The plaintiff may decide that the order precludes recovery and that it would be futile to proceed further in the trial court. If appellate review is desired, however, a final judgment must be entered as a condition precedent thereto. This court has consistently held that an order overruling or sustaining a demurrer is not appealable. "Such an order may be reviewed on appeal taken from the judgment or decree, but the order itself is not a final determination of the case and is not appealable." Butler v. City of Ashland, 113 Or. 72, 74, 231 P. 155, 156 (1924). See, also, Sandblast v. Oregon Liq. Cont. Comm., 177 Or. 213, 161 P.2d 919 (1945), and Weeks v. Snider, 107 Or. 138, 214 P. 334 (1923), and earlier cases there cited.

If a plaintiff concludes that an order quashing his service of summons effectively disposes of his action he can take an order or judgment of dismissal without risk that such an order will be construed as a non-appealable "judgment or decree given by confession," ORS 19.020. In Steenson v. Robinson, 236 Or. 414, 417, 385 P.2d 738, 741, 389 P.2d 27 (1964) we held:

"* * * If the plaintiff takes a nonsuit because of a ruling which precludes recovery, it has been held that the judgment is not in fact voluntarily requested and, therefore, does not bar an appeal. * * *"

In Electrical Products Corp. of Oregon v. Ziegler, 157 Or. 267, 68 P.2d 135, 71 P.2d 583 (1937), a garnishment proceeding, some of plaintiff's allegations as to damages were stricken from his pleading upon motion of the garnishee. Plaintiff thereupon moved for judgment on the pleadings, and judgment was entered in his favor but in an amount substantially less than prayed for. Plaintiff appealed, and the garnishee moved to dismiss the appeal on the ground, among others, that plaintiff had waived his right to appeal by asking for judgment on the pleadings. The court said:

"The next contention is that plaintiff, by asking for a judgment on the pleadings, waived his right to appeal. To this contention we are unable to accede. It was about the only thing that plaintiff could do to wind up the case and get it in shape so that it could appeal." 157 Or. at 273, 68 P.2d at 137.

If the complaint contained only a cause of action for injury to the person and if it appeared with certainty that because of the statute of limitations the order quashing the service effectively disposed of the action there would be a temptation to overlook the procedural defect. There are two reasons why we cannot do so. In the first place it is difficult and sometimes impossible for us to tell whether an order quashing service effectively terminates the action. The best way to advise the appellate court that the case is ripe for appeal is to enter an order of dismissal. In the second place, the quashing of service in the case at bar did not dispose of the two causes of action for property damage — as to those causes at least the action is still pending. Durkheimer Inv. Co. v. Zell, 161 Or. 434, 90 P.2d 213 (1939). See, also, Martin v. City of Ashland et al., 233 Or. 512, 378 P.2d 711 (1963).

No motion has been filed to dismiss the appeal. However, since the appeal was taken from an interlocutory order it is our duty to dismiss the appeal on our own motion. Martin v. City of Ashland et al., supra; State Unemployment Comp. Comm. v. Bates, 227 Or. 357, 363, 362 P.2d 321 (1961); McEwen v. McEwen, 203 Or. 460, 471, 280 P.2d 402 (1955).

We are aware that in the recent case of Morris v. Fee, Or., 469 P.2d 788 (1970), we decided an appeal from an order quashing service of summons. As in this case, there was no motion to dismiss the appeal and we overlooked the failure to enter a final order. See, also, Hanson v. Mosser, 247 Or. 1, 427 P.2d 97 (1967); Harper v. Wilson, 185 Or. 23, 200 P.2d 600 (1948). We are opposed, however, to interlocutory appeals and in the future will require that appeals be taken only from a final judgment.

The appeal is dismissed.

TONGUE, J., concurs in the result.

NOTES

[*] PERRY, C.J., retired June 1, 1970.