Opinion
No. 16-81-06435, CA A22089
Argued and submitted December 18, 1981
Appeal dismissed April 5, 1982
Appeal from Circuit Court, Lane County.
Maurice K. Merten, Judge.
Thomas L. Fagan, Eugene, argued the cause and filed the brief for appellant.
William F. Nessly, Jr., Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General and William F. Gary, Solicitor General, Salem.
Before Buttler, Presiding Judge, and Warden and Warren, Judges.
PER CURIAM
Appeal dismissed.
Plaintiff appeals from an order in a habeas corpus proceeding sustaining a demurrer to his replication to the return to the writ. The order appealed from provides: "It is ordered that the demurrer be sustained, with plaintiff being allowed to plead further." An order sustaining a demurrer is not appealable. J. Gregcin, Inc. v. City of Dayton, 287 Or. 709, 601 P.2d 1254 (1979). No order dismissing plaintiff's petition has been entered. See Scott v. Cupp, 55 Or. App. 23, 637 P.2d 173 (1981).
Proceeding by habeas corpus is a civil proceeding. Holland v. Gladden, 229 Or. 573, 368 P.2d 331 (1962). Demurrers shall not be used. ORCP 13C.
Appeal dismissed.