
    Submitted on briefs Jan. 13,
    decided Feb. 8, 1910.
    ROCKWOOD v. GROUT.
    [106 Pac. 789.]
    Appeal and Error—Appealable Orders.
    Under Section 547, B. & C. Comp., authorizing an appeal from a final order affecting a substantial right and in effect determining the action, so as to prevent a judgment therein, an order sustaining a demurrer to an amended complaint was not appealable, since it did not settle the controversy, as, under Section 101, the court could have permitted a further amendment, or allowed plaintiff to file a new primary pleading.
    From Coos: James W. Hamilton, Judge.
    This is an action by E. M. Rockwood against J. W. Grout and others. From an order sustaining a demurrer to an amended complaint, plaintiff appeals.
    Dismissed.
    For appellant there was a brief with oral arguments by Messrs. Guerry & Hollister.
    
    For respondent there was a brief with oral arguments by Mr. C. E. Maybee and Mr. N. C. McLeod.
    
   This is an attempted appeal from an order of the circuit court for Coos County, sustaining a demurrer to an amended complaint. An appeal may be taken from a final order affecting a substantial right and which in effect determines .the action or suit, so as to prevent a judgment or decree therein. Section 547, B. & C. Comp. The order herein is not final, since it does not settle the legal controversy. The trial court, after sustaining the demurrer, retained jurisdiction of the suit, and at its discretion could have permitted the amended complaint further to be amended, or it could have allowed the plaintiff to file a new primary pleading. Section 101, B. & C. Comp.

No decree had been rendered dismissing the suit, and until that was done the trial court retained power further to hear and determine the cause. Giant Powder Co. v. Oregon Western Ry. Co., 54 Or. 325. (101 Pac. 209).

It follows that the appeal must be dismissed, and it is so ordered. Dismissed.  