Donahoo v. Zacharias

737 P.2d 1250 (1987) 85 Or.App. 551 Mary K. DONAHOO, Respondent, and State of Oregon, Department of Human Resources, Appellant, v. John R. ZACHARIAS, Respondent. 60-84-05471; CA A39980. Court of Appeals of Oregon. Argued and Submitted April 13, 1987. Decided May 27, 1987. John A. Reuling, Jr., Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the briefs were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. Lois Ann Day, Eugene, argued the cause and filed the brief for respondent John R. Zacharias. No appearance for respondent Mary K. Donahoo. Before BUTTLER, P.J., and WARREN and and ROSSMAN, JJ. PER CURIAM. The state appeals from an order of the trial court setting aside a default judgment against respondent. See ORCP 71B. That order is not appealable, Wershow v. McVeety Machinery, 263 Or. 97, 101, 500 P.2d 696 (1972), unless the court lacked jurisdiction over the parties or subject matter. Flynn v. Davidson, 80 Or. 502, 155 P. 197, 157 P. 788 (1916). The only contention here is that the trial court erred in setting aside the judgment by default. The state argues that ORS 19.010(2)(d), which provides for appeals from "[a]n order setting aside a judgment and granting a new trial," sanctions an appeal from an order setting aside a default. That statute existed when Wershow was decided, and the language of Wershow indicates that the Supreme Court was aware of it. Appeal dismissed.