Opinion
No. 124611, CA 9167
Argued December 16, 1977, appeal dismissed January 16, reversed and remanded on reconsideration, former opinion withdrawn 34 Or. App. 187, 578 P.2d 452; petition for review denied July 25, 1978
Appeal from District Court, Marion County.
Clarke C. Brown, Judge.
Donald L. Paillette, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were James A. Redden, Attorney General, and Al J. Laue, Solicitor General, Salem.
John W. Stewart, Salem, argued the cause and filed the brief for respondent.
Before Tanzer, Presiding Judge, and Johnson and Roberts, Judges.
Appeal dismissed.
JOHNSON, J.
The state seeks to appeal from a trial court order sustaining defendant's demurrer to a uniform traffic citation and complaint. An order which merely sustains a demurrer and does not dismiss or set aside the complaint is not an appealable order under ORS 157.081 and ORS 138.060, which provides in part:
"The state may take an appeal from the circuit court to the Court of Appeals from:
"(1) An order made prior to trial dismissing or setting aside the accusatory instrument;
This was also the rule under former ORS 138.060. See State v. Cloran, 233 Or. 400, 374 P.2d 748, 377 P.2d 911, 378 P.2d 961 (1963); State of Oregon v. Davis, 207 Or. 525, 296 P.2d 240 (1956); State of Oregon v. Berry and Walker, 204 Or. 69, 267 P.2d 993, 267 P.2d 995, 282 P.2d 344, 282 P.2d 347 (1955); State of Oregon v. Brown, 5 Or. 119 (1873).
Appeal dismissed.