
    Argued October 9,
    appeal dismissed October 18, 1967
    STATE OF OREGON, Respondent, v. FATE D. HORTON, Appellant.
    
    432 P. 2d 518
    
      Robert L. Olson, Portland, argued the cause and filed the brief for appellant.
    
      Bill L. Williamson, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.
    Before Perry, Chief Justice, and Sloan, Goodwin, Holman and Woodrich, Justices.
   PER CURIAM.

Defendant was indicted for an alleged violation of ORS 697.035, a misdemeanor. On motion of the defendant, consented to by the district attorney, the trial court quashed the indictment. The trial court ordered the case resubmitted to the grand jury. Defendant appeals from this order.

The order of the trial court is not an appealable order. ORS 19.010. The rationale of the recent case of Dlouhy v. Simpson Timber Co., 247 Or 571, 431 P2d 846 (1967), applies equally to the instant case. The trial court should have an opportunity to pass on the question of whether it was proper to resubmit the misdemeanor case to the grand jury. Conceivably, the trial court could conclude that it was error to resubmit this misdemeanor case to the grand jury. On the other hand if the ease went to trial the defendant could be acquitted. In either event, the matter would not be before this court. An opinion by this court at this stage would be merely advisory.

Appeal dismissed.  