Kosher v. Stuart

Opinion by Me. Chief Justice Eakin. 1. This is a motion to dismiss the appeal for the reason that there is no order or judgment from which an appeal will lie under Section 549, L. O. L., which provides that any party to a judgment other than one given by confession or for want of an answer may appeal therefrom. The judgment appealed from is in form a judgment by default, but the defendants made some effort to appear and answer. The trial court adjudged them in default, and the appeal is for the purpose of reviewing the pro [125] ceedings to determine whether or not they were in default. Therefore we cannot determine that there was no answer, and dismiss the appeal without reviewing the record and determining the merits of the appeal, and under such circumstances the motion must be denied. Sears v. Dunbar, 50 Or. 36 (91 Pac. 145); Grover v. Hawthorne, 62 Or. 65 (116 Pac. 100). Denied. (129 Pac. 491.) For appellants there was a brief and an oral argument by Mr. Hayward H. Riddell.