# Abrahamson v. Northwestern Pulp & Paper Co.

> Oregon Supreme Court · June 23, 1932 · 141 Or. 339

URL: https://www.frixlaw.com/law-library/cases/3839708

## Case

- **Full name:** ABRAHAMSON Et Al. v. NORTHWESTERN PULP & PAPER CO. Et Al.
- **Court:** Oregon Supreme Court
- **Decided:** June 23, 1932
- **Citations:** 141 Or. 339; 17 P.2d 1117; 15 P.2d 472; 1932 Ore. LEXIS 201
- **Precedential status:** Published
- **Opinion:** Addendum by Kelly
- **Judges:** Brown, Kelly, Rossman, Campbell
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3839708

## Opinion text

On Rehearing
( 17 P. (2d) 1117 )
KELLY, J.
When this case first was under consideration, the abstract of record, which disclosed that
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orders of dismissal had been entered by the trial court as to three of the defendants, was distributed separately from the first printed abstract and briefs. That may or may not account for the oversight on the part of the justice who wrote the former opinion by reason of which such orders of dismissal were unnoticed. As soon as his attention was called to the orders, of dismissal and the appeal therefrom, Mr. Justice Brown, who wrote the original opinion, requested a rehearing and his request was immediately granted. The usual practice is to fasten the printed abstract of record to the briefs before they are distributed to the members of this court and the writer hereof confined his former consideration of the ease to the record as presented by the printed documents so fastened together and distributed.
Upon rehearing, we are confronted with a motion to dismiss the later appeal. The question involved is whether the orders of dismissal are appealable orders in the light of the fact that no order of dismissal was made as to answering defendants, or as to the other defendants who have appeared by motion to strike the original complaint. An appealable order is a final order: Article VII, section 6, Constitution of Oregon. The legislature has not declared that an order of dismissal as to part of the defendants in a case shall be deemed a final order where, as in this case, no order of dismissal has been made as to the other defendants.
It is argued by plaintiffs that, when the order striking the amended complaint was made, there was nothing left which affects the rights of the answering defendants, or of those who have filed motions to strike the original complaint, or which requires or permits the exercise of any jurisdiction on the part of the trial court with respect thereto; and hence, as to
*348
said answering and moving defendants, as well as to defendants Patton, Fulton and Smith, the said orders of dismissal are final and therefore appealable orders.
We are unable to concur in plaintiffs’ view as above stated. The effect of an order striking an amended pleading is to restore the original pleading:
State ex rel. v. Frenger,
34 N. M. 151 ( 278 P. 208 );
Wapella State Savings Bank v. Colton,
143 Iowa 359 ( 122 N. W. 149 );
Bealle v. Day,
28 Ga. 435 , and other cases cited in 49 C. J. 775, section 1127, note 72. In respect to the defendants, as to whom the same has not been dismissed, this cause is pending in the trial court upon the original complaint and the motions directed against it.
A half a century ago, this court announced the rule that an appeal lies only when the controversy as to all the parties to the action has been finally determined:
Watkins v. Mason,
11 Or. 72, 73 ( 4 P. 524 ). This rule is supported by the great weight of authority: 3 C. J. 464, section 279, and cases cited in note 68;
Bush et al. v. Leach et al.,
22 Fed. (2d) 296;
Kircher v. Hamill et al.,
239 Ill. App. 496 ;
Van Vleet Mansfield Drug Co. v. Spradlin et al.,
268 S. W. 786 ;
Anderson v. Claxton et al.,
291 S. W. 960 ;
Colburn v. Ward,
40 S. W. (2d) 878 ;
Chicago & W. I. R. Co. v. City of Chicago et al.,
294 Ill. 257 ( 128 N. E. 462 ).
Applying this rule, we hold that the orders of dismissal, as to three of the defendants while the case is still pending in the trial court as to the other defendants, are not appealable orders; and that the order heretofore made herein dismissing plaintiffs’ appeal was and is correct.
Result of original hearing adhered to.
Appeal -dismissed.
Campbell, J., not sitting.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3839708. Public record. Not legal advice.