Forrester

In an action brought by respondent as plaintiff against appellant as defendant she sought to recover judgment upon two certain promissory notes. The answer, in addition to pleading want of consideration, for a separate answer alleged that an action had theretofore been brought by plaintiff upon the same causes of action between the same parties, which action had been, by consent of the parties, dismissed by the court and judgment regularly entered therein, for costs. Defendant then, after such answer had been filed, moved the court for dismissal of the pending action, for the reason that the original action dismissed by consent was a bar to the present action. This motion the court denied, and from the order of the court denying the same defendant appeals.

Conceding for appellant all that he claims for his answer, and that the original action and judgment pleaded therein was res adjudicata as to all the matters involved, nevertheless, a motion to dismiss on account of the sufficiency of the answer as a bar to recovery was not the proper procedure. In addition to this, an order of the court refusing to dismiss an action is not itself appealable. (Garthwaite v. Bank of Tulare, 134…