Opinion by
Mr. Cpiief Justice Eakin.1, This is a suit for a divorce. Defendant was served with summons by publication, and default and decree were rendered against her. Thereafter, within a year, defendant appeared under Section 59, L. O. L., which provides that “the defendant against whom publication is ordered * * may * * upon good cause shown, and upon such terms as may be proper, be allowed to defend after judgment * ■* on such terms as may be just, * * and by motion supported by affidavit asked to be allowed to defend the suit, and at the same time tendered her answer.
This application was deemed sufficient by the trial court and it made an order vacating the decree and allowed the answer to be filed, from which order plaintiff appeals. Defendant has filed a motion in this court to dismiss the appeal, for the reason that the order is not a decree within the purview of Section 548, L. O. L., which provides that:
“A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit, so as to prevent a judgment or decree *259therein, or a final order affecting a substantial right, and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree.”
The last clause of this section is an amendment adopted by the laws of 1907, p. 313, and, prior to such amendment, no appeal would lie from an order granting a new trial. Deering v. Quivey, 26 Or. 556 (38 Pac. 710). This amendment was held to be constitutional in Blumauer Frank Drug Co. v. Horticultural Fire Relief of Oregon, 59 Or. 58 (112 Pac. 1084).
The order appealed from does not determine the suit, and is not final unless made so by Section 548, and the only question involved here is whether this order is one contemplated by that amendment. New trials are provided for in Sections 173 to 178, L. O. L. A new trial is a re-examination of an issue of fact in the same court after judgment, and Sections 174, 175, provide when and in what manner a judgment may be vacated and a new trial granted; and an order therefor is one from which an appeal is allowed by the added clause of Section 548, but does not include an order made upon an application for leave to answer under Section 59. In the latter case no issues have been formed, and no trial had. Section 113, L. O. L., provides that, “A trial is the judicial examination of the issues between the parties,” and therefore the order from which the appeal is taken is not a decree within Section 548 as it was not an order for a new trial. See Sears v. Dunbar, 50 Or. 36 (91 Pac. 145). The case of Waymire v. Shipley, 52 Or. 465 (97 Pac. 807), relied upon by plaintiff as holding that such an order will be reviewed upon appeal, is a case in which the question was reviewed upon the appeal from the final judgment, and not an appeal directly from the order, and is therefore not in point.
*2602. Every intermediate order made by the trial court affecting a substantial right may be reviewed upon appeal from the final decree. Clay v. Clay, 56 Or. 538, 542 (108 Pac. 119: 109 Pac. 129).
3. Plaintiff further urges that Section 59, L. O. L., does not authorize the court to vacate the judgment until a defense has been established, for the reason that it contains no express authority to vacate the decree, citing cases from Iowa. Those cases are not in point, as the statute in that state contains specific directions to the effect that the decree shall not be vacated until the defense is established, while the courts in this State have continuously recognized the right to vacate the decree under Section 59, if the application to defend is granted. See Smith v. Smith, 3 Or. 363, 366; White v. Northwest Stage Co., 5 Or. 99; Wolf v. Smith, 6 Or. 73; Waymire v. Shipley, 52 Or. 464 (97 Pac. 807). And this is the evident intent of the statute. Upon the allowance of the application to defend and the filing of the answer, the default is set aside, and, incident thereto, the judgment should be vacated as it is no longer supported by the record. Therefore the order was not beyond the authority of the court to grant and is not void. It is not a final decree and therefore not appealable. The appeal is dismissed.
Dismissed.
Decided March 19, 1912.