Opinion
Argued April 2, 1928
Appeal dismissed April 17, 1928
From Clatsop: J.A. EAKIN, Judge.
APPEAL DISMISSED.
For appellant there was a brief over the name of Mr. Thomas Mannix, with an oral argument by Mr. H.K. Zimmerman.
For respondent N.E. Harju there was a brief and oral argument by Mr. E.E. Mathison.
Plaintiff appeals from an order of the Circuit Court for Clatsop County, vacating and setting aside a decree foreclosing an attorney's lien. The vacated decree and the order were both made and entered at the same term of the court. The evidence offered upon the trial of the cause is not before us and there is nothing to show upon what grounds the court acted in the entry of the decree or in the making of the order. By some inadvertence or otherwise, the order appealed from, after directing that the decree should be vacated, then provided for the granting of a new trial as in a law action.
There is no statute which authorizes the relief of a new trial in an equity suit. The statute authorizing the granting of a new trial applies only to law actions and has no application to a suit in equity. See In re Seidel's Estate, 64 Or. 321, 324 ( 130 P. 53), and Lachele v. Oregon Realty Exchange Inv. Co., 121 Or. 582, 587 ( 256 P. 646). But the effect of the order appealed from was to vacate and set aside the decree which had been entered in the cause. This left the case as it was before the entry of a decree and restored in the court its power to enter a proper decree or do any other act which the court could lawfully have done before the entry of the vacated decree. Presumably but for this appeal the cause would have been finally determined in the court below and a decree would have been there entered from which an appeal could have been taken. This case does not come within any of the provisions of Section 548, Or. L., and was not at the time the appeal was taken subject to appeal. The order appealed from, while it may have affected a substantial right of plaintiff, did not in effect determine the suit "so as to prevent a judgment or decree therein."
The appeal will, therefore, be dismissed and the cause will be remanded to the court below for such other proceedings as are not inconsistent herewith, neither party to recover costs upon the appeal.
APPEAL DISMISSED.