Winters v. Grimes

• Decision Date: 14 February 1928
• Citation: 264 P. 359,124 Or. 214
• Parties: WINTERS ET AL. v. GRIMES ET AL.
• Court: Oregon Supreme Court

264 P. 359

124 Or. 214

WINTERS ET AL. v. GRIMES ET AL.

Supreme Court of Oregon

February 14, 1928

In Banc.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by L. Winters and others against J. C. Grimes and others trustees of the Grimes Oil & Gas Company, and Fred Blake. From the judgment, defendant Fred Blake appeals. On motion to dismiss appeal. Appeal dismissed.

McGuirk & Schneider, of Portland, and Butler & Jack of Oregon City, for the motion.

Schuebel Beattie & Miller, of Oregon City, opposed.

RAND C.J.

This is a motion to dismiss an appeal upon the ground that the decree appealed from is an interlocutory and not a final decree within the meaning of the appeal statute. Section 548, Or. L., as amended by chapter 153, p. 216, Laws of 1923, provides:

"A judgment or decree may be reviewed on appeal 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 on appeal, shall be deemed a judgment or decree, but no appeal to the supreme court shall be taken or allowed in any action for the recovery of money or damages only unless it appears from the pleadings in the case that the amount in controversy exceeds $250."

The 1923 amendment merely added a limitation to the right of appeal by providing that no appeal shall be taken to the Supreme Court in any action for the recovery of money or damages unless it appears from the pleadings that the amount in controversy exceeds $250. With that exception, there is no change in the meaning of the statute, and hence the construction placed upon the statute prior to the amendment must be followed in all cases involving the question of whether the order, judgment, or decree appealed from is final.

The statute authorizes an appeal from "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." With this exception, the statute prohibits an appeal from any interlocutory decree and, from this, it follows that, unless the decree appealed from is a final decree within the meaning given to that word by the former decisions of this court and not interlocutory, this appeal must be dismissed. One of the tests in determining whether a judgment or decree is final is: "If no further action of the court is required to dispose of the cause, it is final." Other tests are: Is the order or decree one which determines the rights of the parties so that no further questions can arise before the court rendering it, except such as are necessary to be determined in carrying it into effect, or is the judgment or decree "one which concludes the parties as regards the subject-matter in controversy in the tribunal pronouncing it?" This question has been so fully considered and decided with such finality that anything more than a mere citation of authorities could add nothing to what has been previously said by this court. See Basche v. Pringle, 21 Or. 24, 26 P. 863; State v. Security Sav. & T. Co., 28 Or. 410, 43 P. 162; State ex rel. v. Downing, 40 Or. 309, 58 P. 863, 66 P. 917; Marquam v. Ross, 47 Or. 374, 78 P. 698, 83 P. 852, 86 P. 1; Sears v. Dunbar, 50 Or. 36, 91 P. 145; La Grande v. Portland Public Market, 58 Or. 126, 113 P. 25; Anderson v. Harju, 113 Or. 552, 233 P. 848.

A mere examination of the decree appealed from in the instant case shows that it is not a final decree, and hence not a decree from which an appeal can be taken. It expressly declares that plaintiff...