Birkemeier v. Milwaukie

Mr. Justice Harris delivered the opinion of the court. 1. The defendants take the position that, on the record as already stated, the order is not appealable within the meaning of Section 548, L. O. L. The plaintiff contends that the order is appealable for the reason that the demurrer was not only overruled, but the preliminary injunction or restraining order previously issued was dissolved; that the ultimate relief asked for was an injunction, and when the court dissolved the temporary injunction it was an order affecting a substantial right, and which, in effect, determines the action or suit so as to prevent a judgment or decree therein. It will be assumed that the trial judge was of opinion that the plaintiff could not make any valid objection to the kind of water system proposed to be constructed, else he would have sustained the demurrer. The plaintiff alleges that the defendants did not comply with the charter by first attempting to acquire the existing waterworks system by arbitration; and defendants aver that they did observe the directions of the charter in that particular. The right of plaintiff to the relief sought, among other things, depends upon the truth of the allegation that the charter was not followed, while the right of defendants to proceed may depend upon whether the charter has been obeyed. There is, then, an issue made by the pleadings and undetermined by the court. The ruling on the demurrer only determines whether the answer is good if true. The plaintiff in his complaint tells his version, while the defendants in their answer give an opposite account of the transaction. It is clear, then, that the ruling on the demurrer did not have the effect [150] of deciding the suit. If the only question to be considered was whether the ruling on the demurrer could be appealed from before final decree, the conclusion would be clear that the order was not appealable. An appeal from a final decree would, of course, permit the review of the order overruling the demurrer. This court has said: “An order or decree is final for the purposes of an appeal when it determines the rights of the parties, and no further questions can arise before the court rendering it except such as are necessary to be determined in carrying it into effect”: State v. Security Savings Co., 28 Or. 410, 417 (43 Pac. 162). The following cases are to the same effect: Sears v. Dunbar, 50 Or. 41 (91 Pac. 145); Giant Powder Co. v. Oregon Western Ry. Co., 54 Or. 326 (101 Pac. 209, 103 Pac. 501); Basche v. Pringle, 21 Or. 24 (26 Pac. 863); Fowle v. House, 26 Or. 588 (39 Pac. 5); Helm v. Gilroy, 20 Or. 520 (26 Pac. 851); Marquam v. Ross, 47 Or. 381 (78 Pac. 698, 83 Pac. 852, 86 Pac. 1); Rockwood v. Grout, 55 Or. 389 (106 Pac. 789); Clay v. Clay, 56 Or. 539 (108 Pac. 119, 109 Pac. 129); Lecher v. City of St. Johns, 74 Or. 558 (146 Pac. 87). 2. There is, however, an additional feature. The preliminary injunction was dissolved. Ordinarily, an order granting or denying a preliminary injunction is not appealable (Helm v. Gilroy, 20 Or. 520 (26 Pac. 851); Basche v. Pringle, 21 Or. 24 (26 Pac. 863); but the plaintiff contends that he asks for nothing in his complaint except injunctive relief; that the dissolution of the temporary injunction will permit the defendants at once to proceed with the work attempted to be enjoined; that there is now no obstacle to prevent the defendants from doing the very thing that the suit was designed to prevent; that, if the work mentioned is [151] completed before a decree in tbe Circuit Court, an appeal would be vain and futile; and that therefore the order affected a substantial right, and, in effect, determined the suit. Because of the importance of the question involved in the last-mentioned phase of the case, the motion to dismiss is denied; but, for the purpose of enabling a complete presentation of the subject, the defendants are granted permission to renew their motion at the final hearing. Motion to Dismiss Denied. Appeal dismissed as per stipulation May 11,1915.