Ensley v. Fitzwater

HOLMAN, S. J.

Plaintiff filed a notice of appeal as follows:

“Plaintiff-Appellant Clifford O. Ensley hereby gives Notice of Appeal from the order granting defendant’s motion for summary judgment, dated October 27, 1980, and the order denying plaintiffs motion for rehearing and motion to set aside the order granting defendant’s motion for a summary judgment, * * * ”

The order of October 27, 1980, which is appealed from, recites as follows:

“IT IS HEREBY ORDERED that defendant’s motion for summary judgment is granted in its entirety.”

The second order (November 3, 1980), which is appealed from, recites as follows:

“ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

“1. Plaintiffs motion for rehearing and motion to set aside the order granting defendant’s motion for summary judgment is hereby denied.

“2. Defendant’s Order for summary judgment in favor of defendant is hereby granted.”

After the entry of the two orders above set forth, the trial court entered a judgment order dated November 3, 1980, as follows:

“ORDERED, ADJUDGED AND DECREED that judgment shall be entered herein in favor of the defendant and for defendant’s costs and disbursements incurred herein in the sum of $__

“IT IS FURTHER ORDERED that plaintiff shall take nothing.”

The orders ruling on the motions were not final orders and were, therefore, not appealable. ORS 19.010. There was no appeal taken from the judgment and, therefore, the appeal is dismissed.