Arcade Hotel, Inc. v. Peterson

59 P.2d 384, 154 Or. 679, 1936 Ore. LEXIS 55

• Court: Oregon Supreme Court
• Decided: June 10, 1936
• Status: Published

Opinion

PER CURIAM.

On October 18, 1929, the plaintiff filed a complaint in the circuit court for Lake county, seeking to recover the balance of an account. The defendant demurred to the complaint on the ground that several causes of action had been improperly united in the complaint. On February 10, 1930, after a hearing thereon in which both parties appeared by counsel, the court entered an order sustaining the demurrer and granting leave to the plaintiff to file an amended complaint separately stating its several causes of ae tion, and also requiring the plaintiff to file a duly verified copy of its account. Thereafter nothing was done in the action by either party until June 6, 1934, when the plaintiff filed a duly verified copy of its account and on October 6, 1934, it filed, a motion for judgment by default without filing an amended complaint as it had been required to do under the previous order of the court. On May 20,1935, the plaintiff filed its amended complaint and separately stated its three causes of action therein. The defendant thereupon filed a motion to strike the amended complaint from the files and also an affidavit in support of said motion. Plaintiff thereupon filed counter-affidavits and on August 28,1935, again filed a motion for judgment by default.

Both of these motions were argued and submitted together and an order was made and entered denying plaintiff’s motion for judgment by default and striking the amended complaint and awarding judgment to the defendant in the sum of $5, as costs on the motion, but no final order dismissing the action was made or entered. The action, therefore, is still pending in the trial court and the order appealed from is not an appealable order.

The appeal, therefore, is dismissed.