dissenting.
Because I do not agree with the majority “that defendant’s motion is the analogue of a motion for a new trial under ORCP 64 and that it has the effect of extending the time for appeal under ORS 19.026(2),” I respectfully dissent.
Defendant moved to reconsider an intermediate order granting a motion for summary judgment. He did not move for reconsideration of the summary judgment. That is clear from the language of his motion:
“Comes now the defendant and moves the court to reconsider its’ [sic] Order dated and filed May 9,1984.”
In the two cases relied upon by the majority, Cooley v. Roman, 286 Or 807, 596 P2d 565 (1979), and State ex rel State Farm Mutual Auto. Ins. Co. v. Olsen, 285 Or 179, 590 P2d 231 (1979), the motions were to set aside the respective summary judgments. That defendant here moved for reconsideration of the order granting summary judgment, rather than to set aside the summary judgment, is a significant difference.
The Supreme Court has cautioned that “a judgment is distinct from an order and confusion arises when the two terms are used together.” May v. Josephine Memorial Hospital, 297 Or 525, 528 n 4, 669 P2d 824 (1983); Street v. Gibson, 295 Or 112, 115 n 1, 655 P2d 604 (1983); see also City of Portland v. Carriage Inn, 296 Or 191, 673 P2d 531 (1983). The *487majority, after recognizing that the distinction between an order and a judgment is an important one, goes on to give them an identical effect.
The issue is whether a motion to reconsider an intermediate order allowing summary judgment is equivalent to a motion for a new trial under ORCP 64. The majority holds that it is, on the authority of Cooley v. Roman, supra, and State ex rel State Farm Mutual Auto. Ins. Co. v. Olsen, supra, even though the motion in each of those cases was to set aside the actual judgment and not merely to reconsider the order that paved the way for entry of the judgment.
I do not understand ORCP 64 to authorize a new trial on the basis of a motion for reconsideration of an intermediate order rather than a judgment. An order is clearly not the same thing as a judgment. To consider a motion for reconsideration of an intermediate order as the equivalent of a motion to set aside a judgment adds to the confusion discussed in May v. Josephine Hospital, supra, and Street v. Gibson, supra.1
For these reasons, I respectfully dissent.
There are orders on other motions that, like an order granting summary judgment, pave the way for judgment. Among them are orders allowing motions to dismiss under ORCP 21A and ORCP 54B and motions for directed verdict under ORCP 60. If the majority is correct, a motion to reconsider an order in any of those circumstances is an acceptable substitute for a motion for a new trial under ORCP 64 and extends the time for appeal under ORS 19.026(2). We have had statutes governing such dismissals and directed verdicts much longer than we have had statutes or rules permitting summary judgment. I have been unable to find any case holding that a ruling on a motion to reconsider an order of dismissal or an order directing a verdict to be the analogue of a motion for a new trial under ORCP 64 so as to extend the time for appeal.