Flynn v. Davidson

Mr. Justice Harris delivered the opinion of the court. 1, 2. As a general rule, an order setting aside a default is of an intermediate character, and is not appealable, although it may be reviewed if an appeal is taken from the final judgment or decree: Taylor v. Taylor, 61 Or. 257 (121 Pac. 431, 964); Hall v. McCan, 62 Or. 556 (126 Pac. 5). The appellant concedes the general rule, but relies upon what is said in First Christian Church v. Robb, 69 Or. 283 (138 Pac. 856), contends that the order was void and therefore an utter nullity, and argues that a void order is appeal-able The merits of the order can neither be examined nor determined on a motion to dismiss the appeal. [504] Since nothing remains to be done on the appeal except the filing of a brief by the respondent, and in view of the condition of the record and the question involved, we do not now decide whether the order is appealable, but merely deny the motion, with permission to renew it on the final hearing. On August 29,1914, plaintiff began this suit to foreclose a certificate of delinquency of taxes against certain property in Sumpter. . Service was had upon the defendant Davidson by publication. A final decree of foreclosure upon defendant was entered on November 7, 1914. Thereafter, on September 8, 1915, Davidson filed a motion to set aside the decree and to be permitted to file Ms objections and defend. Upon a hearing the trial court, on October 8,1915, entered an order vacating the decree and permitting the defendant to file his answer to the complaint. From this order, plaintiff appeals. Heretofore a motion to dismiss the appeal was submitted to this court, and an order was then made denying the motion, but with leave to present the same upon the final hearing. [504] 3. The appellant did not file an abstract of the record within 20 days after the transcript was filed, as prescribed by Rule VI of our rules (56 Or. 616, 11.7 Pac. ix). The record shows that there has not been any disposition unduly to delay the hearing; only a few days of delay resulted from an honest mistake in calculating the time for the filing of the abstract, and therefore the mistake should be excused: St. Martin v. Hendershott (now pending on merits), (151 Pac. 706). The motion to dismiss is denied, with the right to renew the motion when the cause is heard on the merits. Motion Denied. Mr. Justice Eakin took no part in the consideration of this case.