v.
WOODRUFF
Opinion by
Mr. Chief Justice Bean.The only question presented for our determination is whether the plaintiff was entitled to a voluntary nonsuit. By section 402 of Hill’s Code a decree dismissing a suit may be given against the plaintiff in any of the cases specified in subdivisions 1, 2, and 3 of section 246, except the last clause of subdivision 3. By subdivision 1 referred to a plaintiff is entitled to a voluntary nonsuit at any time before trial, unless a counterclaim has been pleaded as a defense. Under our statute atrial is defined to be “the judicial examination of the issues between the parties.”[*376] Section 177. Issues are of two kinds: first, of law; second, of fact. Section 173. An issue of law arises upon a demurrer (section 174), and, since a defendant may demur upon the ground “that the complaint does not state facts sufficient to constitute a cause of suit,” (sections 67 and 389,) it would seem to follow that the determination of an issue presented by such a demurrer is a “trial” of the cause within the meaning of the statute (Alley v. Noth, 111 U. S. 472), and, as a consequence, that after the disposition thereof a plaintiff is not entitled to a voluntary nonsuit unless by leave of the court an amended complaint is filed. If, however, he is allowed to amend and does so, the original complaint and the demurrer thereto cease to be a part of the record for the purposes of the trial, and the cause stands for hearing or trial on the amended complaint the same as if no other had been filed: Wells v. Applegate, 12 Or. 208, 6 Pac. 776; Hexter v. Schneider, 14 Or. 184, 12 Pac. 668. In such a case, it seems to us, a plaintiff would be entitled, as a matter of right, to a voluntary nonsuit at any time before the amended complaint is disposed of, or a trial had on some issue tendered by it, although it may in fact be subject to the same objection as the original In the case at bar, after the demurrer had been sustained, the court allowed the plaintiff to amend, which he did. The original complaint and the ruling on the demurrer, therefore, ceased to be a part of the case, but it stood for hearing on the amended complaint alone, and as there had been no trials on any issues tendered by such complaint, and it still remained on file, we are of opinion plaintiff was clearly entitled to become nonsuited if he so desired, and the court erred in overruling his motion for that purpose.
The refusal of the court to grant the nonsuit, and in entering a decree dismissing the suit, was undoubtedly prejudicial error. A voluntary nonsuit, when taken as prescribed in subdivision 1 of section 246, does not bar á[*377] subsequent suit for the same cause; but a decree sustaining a demurrer to a complaint and dismissing the suit because it does not state facts sufficient to constitute a cause of suit, is, until reversed, a final determination of the issues presented by such complaint, and can be pleaded as a bar to a subsequent action for the same cause. For these reasons the decree of the court below will have to be reversed and the motion for a nonsuit allowed.
Reversed.