Sandblast v. Oregon Liq. Cont. Comm.

• Decision Date: 25 September 1945
• Citation: Sandblast v. Oregon Liq. Cont. Comm., 177 Or. 213, 161 P.2d 919 (Or. 1945)
• Parties: SANDBLAST <I>v.</I> OREGON LIQUOR CONTROL COMMISSION ET AL.
• Court: Oregon Supreme Court

177 Or. 213

161 P.2d 919

SANDBLAST

v.OREGON LIQUOR CONTROL COMMISSION ET AL.

Supreme Court of Oregon.

Argued September 18, 1945.

Appeal dismissed September 25, 1945.

Appeal and error

1. An order sustaining a demurrer is not appealable.

Appeal and error

2. No appeal lies before final judgment from rulings on demurrers to the pleadings except as they come within the terms of a special statute dealing therewith or within the terms of general statutes permitting appeals from interlocutory orders.

Mandamus

3. In absence of statute to such effect, an order sustaining demurrer to alternative writ of mandamus was not appealable.

Mandamus

4. Where the only notice of appeal was directed to order sustaining a demurrer to alternative writ of mandamus, Supreme Court would be without jurisdiction on review, even if record should disclose that an appealable order was entered, since there was no notice of appeal therefrom.

Appeal and error

5. To confer appellate jurisdiction upon the Supreme Court, an appealable order, judgment, or decree must be rendered by trial court and a notice must be given of an appeal from such order, judgment, or decree.

  See 2 Am. Jur. 892
                  4 C.J.S., Appeal and Error, § 116
                

Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK, BRAND, and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

Proceeding in mandamus by L.B. Sandblast against Oregon Liquor Control Commission, an agency of the state, acting through G.P. Lilley and others, as commissioners, and Ray Conway, as administrator and secretary thereof, requiring the commission to sell and deliver to plaintiff for August, 1944, a quart of whisky in addition to the quart and fifth sold to him in August.From an order sustaining defendant's demurrer to the amended alternative writ of mandamus, plaintiff attempted to appeal.

APPEAL DISMISSED.

L.B. Sandblast, of Portland, in pro. per.

Wilber Henderson, of Portland (Ernest M. Jachetta, of Portland, on the brief), for respondents.

KELLY, J.

On August 19, 1944, plaintiff filed a complaint in the Circuit Court for Multnomah County, the prayer of which is as follows:

"Wherefore, plaintiff prays that the Oregon Liquor Control Commission be required to sell and deliver to the plaintiff one quart of whiskey in excess of a quart and a `fifth' of whiskey which he has heretofore acquired by sale and purchase from the Oregon Liquor Control Commission during the month of August, 1944, thereby providing the plaintiff with two quarts of standard brand of alcoholic liquor known as whiskey which it has in its possession for sale, for the month of August, 1944, and for his costs and disbursements incurred herein."

Based upon that complaint an order was made directing the issuance of an alternative writ of mandamus, which was issued and served upon defendant commission.To that alternative writ a demurrer was filed and on August 25, 1944, an order was duly made sustaining said demurrer and granting plaintiff until and including August 28, 1944, in which to file an amended alternative writ of mandamus.

On August 28, 1944, plaintiff filed an amended complaint and petition for the issuance of an amended writ of mandamus; and an order was duly made directing the issuance of an amended alternative writ of mandamus.Said amended writ was thereupon issued and on August 30, 1944, a demurrer thereto was filed.

On August 31, 1944, an order was duly made and entered sustaining said last mentioned demurrer.

Omitting the title, said order is as follows:

"This matter coming on regularly to be heard on the 20th day of August, 1944, in the above entitled court and cause upon the Demurrer of the defendant, Oregon Liquor Control Commission, to plaintiff's Amended Alternative Writ of Mandamus; plaintiff appearing in person, and defendant, Oregon Liquor Control Commission, appearing by its attorney, Ernest M. Jachetta; and the court having listened to the arguments of counsel, and the court being of the opinion that the Demurrer to the Amended Alternative Writ of Mandamus should be sustained; and the court being fully advised in the premises, now, therefore,

It Is Ordered, that the Demurrer of the defendant, Oregon Liquor Control Commission, to plaintiff's Amended Alternative Writ of Mandamus be and the same is hereby sustained.

Dated at Portland, Oregon, this 31st day of August, 1944.

                                  Walter L. Tooze
                                                            Judge."
                

Omitting its title the following is the only notice of appeal appearing in this record, to-wit:

"To the defendant, Oregon Liquor Control Commission, an agency of the State of Oregon, acting through and by G.P. Lilley, H.R. Kirkpatrick and P.L. Crooks, as Commissioners and Ray Conway, as Administrator and Secretary thereof:

You will please take notice that the Petitioner, L.B. Sandblast, hereby appeals to the Supreme Court of the State of Oregon from the Order and...