
    Decided February 8, 1897.
    FOWLE v. HOUSE.
    (47 Pac. 787.)
    Appeal From Decree Sustaining Demurrer — Disposition op Cause on Affirmance. — Where a decree sustaining a demurrer to a complaint on the ground that it does not state a cause of suit is affirmed, final judgment will not be entered, but the cause will be remanded for such further proceedings as may be deemed proper: Powell v. Dayton, etc., R. R. Co., 14 Or. 22, approved and followed.
    From Polk: Geo. H. Burnett, Judge.
    Motion to recall mandate and amend the decree.
    
      Mr. F. A. Chenoweth, for the motion.
    No appearance for respondent.
   Per Curiam.

The motion to recall the mandate is denied. The decree of the court below sustaining a demurrer to the complaint because it does not state facts sufficient to constitute a cause of suit was affirmed in this court (29 Or. 114, 44 Pac. 692); but no final disposition of the cause was made, it being remanded to the court below “for such further proceedings as may be deemed proper, not inconsistent with the opinion herein.” Under the mandate sent down, the court was at liberty to determine in the first instance whether the plaintiff should be allowed to amend his complaint, and with the exercise of that discretion we cannot interfere by directing what course it shall pursue in the matter. This is the rule of practice in cases of this character announced in Powell v. Dayton R. R. Co., 14 Or. 22 (12 Pac. 83), and which has been followed ever since that decision. It was said at the argument of the motion that the court below had refused to permit an amendment on the ground that under the mandate it had no authority so to do, but we cannot inquire into that question at this time.

Overruled.  