
    Argued December 16, 1977,
    appeal dismissed January 16,
    reversed and remanded on reconsideration, former opinion withdrawn 34 Or App 187, 578 P2d 452; petition for review denied July 25, 1978
    STATE OF OREGON, Appellant, v. DAVID WAYNE THOMAS, Respondent.
    
    (No. 124611, CA 9167)
    573 P2d 1259
    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.
    JOHNSON, J.
   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; " * * * * *"

Appeal dismissed. 
      
       This was also the rule under former ORS 138.060. See State v. Cloran, 233 Or 400, 374 P2d 748, 377 P2d 911, 378 P2d 961 (1963); State of Oregon v. Davis, 207 Or 525, 296 P2d 240 (1956); State of Oregon v. Berry and Walker, 204 Or 69, 267 P2d 993, 267 P2d 995, 282 P2d 344, 282 P2d 347 (1955); State of Oregon v. Brown, 5 Or 119 (1873).
     