
    [Decided February 11, 1895.]
    FOWLE v. HOUSE.
    [S. C. 39 Pac. 5.]
    Appealable Order—Code, g 535.—An order refusing to grant a preliminary injunction is not appealable, where the court does not pass upon the merits of the case.
    Appeal from Polk: Geo. H. Burnett, Judge.
    This is an appeal from an order denying a preliminary injunction. The plaintiff in his complaint alleges that he is the owner in fee of three hundred and twenty acre» of land in Polk County, Oregon, and that the defendant had a dower estate therein which was subject to a mortgage lien in his favor, given to secure the payment of six hundred dollars and interest at the rate of ten per cent, per annum from October first, eighteen hundred and eighty-seven; that the defendant, without having paid any part of said mortgage debt, commenced a suit against him wherein she obtained a decree setting off her dower and awarding her eighty-eight dollars, the full amount of the costs and expenses of the partition proceedings, upon which decree she, on May thirty-first, eighteen hundred and ninety-three, caused an execution to be issued and delivered to the sheriff of said county for service; that many items of the cost bill were improper and illegal, and that the decree therefor was irregular in ordering the whole amount thereof to be taxed against him; that the defendant is insolvent, and if he were obliged to satisfy said execution he would be powerless to compel her to return the money which she might collect thereon, or any part thereof, and prays that she be enjoined from enforcing the same. Upon the commencement of the suit the defendant was required to appear and show cause why a preliminary injunction should not be granted therein, and, having appeared at the time appointed, she demurred to the complaint, whereupon the judge made an order denying the injunction until the final hearing of said cause, from which order the plaintiff appeals.
    Dismissed.
    
      Mr. F. A. Chenoioeth, for Appellant.
    No appearance for Respondent.
   Per Curiam.

The judge in refusing to grant the preliminary injunction did not assume to pass upon the merits of the case and hence the order was not final and no appeal will lie therefrom: Hill’s Code, § 535; Basche v. Pringle, 21 Or. 24. An appealable order is one which not only affects a substantial right but which in effect determines the suit or action. The order complained of does not determine the suit and the appeal must therefore be dismissed, and it is so ordered. Dismissed.  