Smith v. Rose , 125 Or. 56 ( 1928 )

In Banc. This is a motion to dismiss an appeal attempted to be taken by the plaintiff in this case. To prevent confusion, it may be stated that there are two appeals pending before the Supreme Court in this case. The first appeal is from an order sustaining the demurrer to the complaint. There was no judgment of dismissal or for costs, nothing, in fact, but the mere order that the demurrer be sustained. Several months later, the defendant took the second order dismissing the complaint dissolving a preliminary injunction, which had been issued, and adjudging costs against the plaintiff. The order sustaining the demurrer was not a final order, but left the case still standing subject to such amendment, or attempted amendment, as the plaintiff might see fit to make. So far as this order is concerned, the case is in exactly the same position as that of L.D. Powell Co. v.Wiest, 117 Or. 18 (242 P. 624), decided January 12, 1926. This appeal will be dismissed, leaving the case standing upon the second appeal, which seems to be properly taken.

FIRST APPEAL DISMISSED.