Hubbard v. Olsen-Roe Transfer Co.

199 P. 187, 101 Or. 168, 1921 Ore. LEXIS 153

• Court: Oregon Supreme Court
• Decided: July 19, 1921
• Status: Published

Opinion

BURNETT, C. J.

Respecting appeals, Section 548, Or. L., reads thus:

“A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or an interlocutory decree in a suit for the partition of real property, defining the rights of the parties to the suit and directing sale or partition, or a final order affecting a substantial right, and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree.”

According to this section, an order to be appealable must not only affect a substantial right but it must also in effect determine the action or suit, so as to prevent a judgment or decree therein. The instant ease has nothing to do with partition of real property, with any order made after a judgment or decree, or yet with an order setting aside a judgment and granting a new trial. Appeals are statutory in their nature. The judgment to be appealable must be substantially a final disposition of the action. It cannot be,. under our statute, that the instant a litigant becomes aggrieved at a decision of the trial court he can appeal to this court. It would lead to endless litigation, and rights of the parties would be decided by piecemeal, not only in the trial court but in the appellate court. We do not decide here whether the order complained of was right or wrong. Although the answer of the defendant has been pruned a great deal, yet there are issues to be determined by the trial court before the rendition of a final judgment in the action. It may be that on the issues remaining the defendant may prevail, so that it will have no need of an appeal. On the other hand, if final judgment shall be adverse to the defendant, it can appeal from that decision, and “upon an appeal, the appellate court may review any intermediate order involving the merits, or necessarily affecting the judgment or decree appealed from; and when it reverses or modifies such judgment or decree, may direct complete restitution of all property and rights lost thereby”: Section 558, Or. L.

All of the questions presented by the record here are interlocutory thus far and should be reserved until a final order which is conclusive of the entire case and from which an appeal will lie. On such an appeal we can review all of the mistakes made by the trial court, and either affirm, reverse or modify its decision. As there is no final appealable order presented for our consideration, the instant appeal must be dismissed.

Motion Allowed. Appeal Dismissed.