Motion for modification allowed April 5, 1927. ON MOTION FOR MODIFICATION. (254 P. 1021.) This cause has come on for hearing upon the motion of plaintiff for an order to modify the decree of this court affirming the decree of the Circuit Court by remanding the cause for further proceedings not inconsistent with the opinion as thus modified. The motion is opposed by defendants. Affidavits have been filed by both parties touching the merits of the controversy. This court will not consider such affidavits on a motion to modify its decree for the mere purpose of having the cause remanded. The correct practice was established comparatively early in this jurisdiction.
"* * We therefore announce it as a rule of practice in such cases, that whenever this court does not make a final disposition of the cause, but remands the same to the court below, it will be open for that court to determine in the first instance whether the defendant shall be permitted to answer or not. This discretion, *Page 450 of course, is a judicial discretion — not arbitrary — and is always to be exercised in furtherance of justice. This cause will therefore be remanded to the court below, for such further proceedings as may be proper. (McDonald v. Cruzen, 2 Or. 259. )" Powell v. Dayton, S. G.R.R. Co., 14 Or. 22, 23 (12 P. 83).
This case has been cited with approval by many later cases:State ex rel. v. Metschan, 32 Or. 372, 388 (46 P. 791, 53 P. 1071, 41 L.R.A. 692); Fishburn v. Londershausen, 50 Or. 363,377 (92 P. 1060, 15 Ann. Cas. 975, 14 L.R.A. (N.S.) 1234);State v. Warner Valley Stock Co., 56 Or. 283, 307 (106 P. 780, 108 P. 861); Turnham v. Calumet Oregon Mining Co.,53 Or. 453, 459 (112 P. 711, 115 P. 157); Williams v.Pacific Surety Co., 66 Or. 151, 157 (127 P. 145, 132 P. 959).
The case of State v. Warner Valley Stock Co., above, involved a demurrer to the complaint. In page 307 of the official report it is held:
"The conclusion is that the demurrer to the complaint so far as it relates to the deeds of date August 21, 1891, and the one of date March 23, 1893, will be overruled. And as to the one of date January 18, 1883, it will be sustained."
And on rehearing the court on page 312 said:
"As to the deeds of date August 21, 1891, and the one of March 3, 1893, no doubt the defendant is entitled to have leave to answer. As to the deed of date January 18, 1883, it is for the lower court to determine whether the plaintiff should be allowed to amend; * *"
It thus appears that as a rule where the Circuit Court sustains a demurrer to a complaint, and its order is affirmed by this court, the case will be remanded to the Circuit Court to be disposed of there *Page 451 agreeably to justice. This rule is not absolute, but has been generally followed. The decree of this court, February 23, 1927, will be modified by remanding the cause for such further proceedings as may be proper. MODIFIED. REHEARING DENIED.