The issue which awaits our disposition occurs upon the respondent's motion to dismiss the appeal taken by the appellant from an order of the circuit court which set aside a default judgment and permitted the respondent to file an answer. In seeking to sustain the appeal the plaintiff argues that the order aforementioned is of the type embraced by § 7-501, Oregon Code 1930, which defines the appealable orders, judgments and decrees:Bowman v. Holman, 48Or.351 (86P.792), and Hall v. McCan,62Or.556 (126P.5), hold that an order setting aside a default *Page 75
judgment is not a "final order affecting a substantial right" as defined by the above section of our code. Since the decision inBowman v. Holman, supra, the 1907 Session Laws, chapter 162, § 6, amended the quoted language by adding thereto: "An order setting aside a judgment and granting a new trial." In Taylor v.Taylor, 61Or.257 (121P.431, 121P.964), this court construed the language last quoted and held that an order which sets aside a default and permits an answer to be filed is not one which sets aside a judgment and grants a new trial. See to the same effect Carmichael v. Carmichael, 101Or.172 (199P.385). After again considering the language of § 7-501, Oregon Code 1930, we remain satisfied with the construction placed upon it by the above decisions. It follows that the motion is allowed.