dissenting.
I dissent from the majority opinion remanding the case to the trial court with directions to dismiss the indictment and discharge the defendant. My reason *503for dissenting is that the orders of the trial court, dated March 31, 1952, and June 30, 1952, continuing all criminal cases to the following term on the grounds that the court did not have time to dispose of such cases during the term, imported absolute verity and were not subject to collateral attack.
It will be remembered that on July 30, defendant filed a motion to dismiss the case against her on the grounds that “the same was not tried in the next term of Court from when the cause commenced, and that there has been a failure of prosecution.” Hearing was had upon such motion, evidence was taken, and the court denied the motion. Later, on August 18, the date of the trial, defendant renewed her motion for a dismissal, which was likewise denied.
It will be noted that the record upon which the prevailing opinion bases its decision was made subsequent to the entry of the continuing orders. The continuing orders were never under direct attack. The motions to dismiss the indictment were based on § 26-2002, OCLA (134.120 OES) which requires an order to dismiss the indictment if the defendant is not brought to trial at the next term of court unless the same is continued for good cause. The continuing orders were brought into the case incidentally and collaterally.
In State v. Moltzner, 140 Or 128, 137, 13 P2d 347, this question was squarely before the court. There the defendant moved to dismiss the indictments on the same ground that was urged in the motion in the instant case. We there said:
“The statement, that lack of time on the part of the court required a continuance of the unfinished business, is in itself good cause for not dismissing pending indictments: State v. Bertschinger, 93 Or. 404, 177 P. 63; State v. Lee, 110 Or. 682, 687, *504224 P. 627; State v. Bateham, 94 Or. 524, 186 P. 5; State v. Goldstein et al., 111 Or. 221, 224 P. 1087. If such, a statement, appearing as it does in the journal of the court, is false, or was inserted without authority, application to correct the entry should have been made to the circuit court. In the absence of any order expunging it, we are bound by it. ‘Until impeached by the court, itself, it imports verity.’ State v. Gilbert, supra; Ex parte Jerman, 57 Or. 387, 402, 112 P. 416, Ann. Cas. 1913A 149, and cases there cited; Ollschlager’s Estate, 50 Or. 55, 89 P. 1049. Elliott’s Appellate Procedure, § 186.”
In State v. Weitzel, 153 Or 524, 527, 56 P2d 1111, this question was again before us for determination. We there reaffirmed the rule laid down in State v. Moltzner, supra, saying:
“ It is a well-settled rule that an order appearing in the journal of the court is taken by this court as an absolute verity. * * *”
In State v. German, 163 Or 642, 645, 98 P2d 6, a motion was made to dismiss an indictment because the case was not brought to trial within the next term of court. There was a general order continuing all cases to the next term of court because of unfinished business, etc. We said:
“* * * An affidavit was filed on behalf of defendant attempting to show that the court might have tried the cases and to avoid the effect of the several orders of continuance above mentioned. No direct attack has ever been made against the validity of these orders, and we do not think that the order continuing any case could be attacked collaterally. The order above quoted, appearing in the journal, was signed and approved in open court by the presiding judge at the end of each term.
“It is a well-settled rule that an order appearing in the journal of the court is taken by this court as *505an absolute verity. State v. Moltzner, 140 Or. 128, 13 P. 2d 347; State v. Gilbert, 55 Or. 596, 112 P. 436; Ex Parte Jerman, 57 Or. 387, 112 P. 416, Ann. Cas. 1913A 149; Ollschlager’s Estate, 50 Or. 55, 89 P. 1049; State v. Weitzel, 153 Or. 524, 56 P. 2d 1111.” (Italics supplied.)
It appears to be tbe settled law of this state that a continuing order such as we have in this case imports absolute verity and can only be vacated by a direct attack on the order itself and that a motion to dismiss an indictment because the case was not brought to trial at the subsequent term is not a direct attack on the order of continuance but a collateral attack.
The majority opinion relies principally upon State v. Chadwick, 150 Or 645, 650, 47 P2d 232. This case, as will presently be shown, does not disturb the rule announced in the three cases hereinbefore relied on. It does not appear from that case that any general order of continuance was entered. A motion was filed to dismiss the indictments because the cases were not tried during the next term of court. The trial court, in ruling on that motion, by its order recited: “* * * said indictments was [sic] continued by the tacit consent and acquiescence of both plaintiff and defendant # * There was the further recital in such order:
“And it further appearing that the work and duties of this court in the other counties composing this judicial district is such that the court will not have time to try defendant on said indictments at the present term of this court.”
Prom that order denying defendant’s motion to dismiss defendant appealed to this court. In reversing the case we held that on the face of the order entered no express consent of the defendant for continuance *506was shown and that the cause for not trying the case in the next term of court was not a sufficient cause. The distinction between that case and the three cases relied upon by me is that there a direct attack was made on the order denying dismissal by appeal from the same to this court.
Winston L. Bradshaw, District Attorney for Clackamas County, argued the cause for respondent. With him on the brief was Robert T. Thornton, Attorney General for the State of Oregon. Edward J. Georgeff, of Portland, argued the cause for appellant. With him on the brief was Rivon E. Jones, of Portland.It is therefore clear that since the continuance orders in this case have not been attacked directly, but collaterally, the same are unimpeachable and must be given full faith and credit. For this reason, in my opinion, the defendant is not entitled to have her motion to dismiss sustained.
Warner and Ltjsk, JJ., concur in this dissent.