Commins

The plaintiff in this action, at the conclusion of the testimony introduced in support of his main case, was nonsuited. An appeal was taken from the order granting the motion of nonsuit, the record of which order or judgment appeared only in the minutes of the court.

It is first claimed by the respondent that the order granting the motion for a nonsuit, not being followed by a formal judgment of dismissal, was not a final judgment in the sense that that term is used in section 939 of the Code of Civil Procedure, providing for appeals. Section 581 of the Code of Civil Procedure.provides that: “An action may be dismissed, or a judgment of nonsuit entered, in the following cases: ... 5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. The dismissals mentioned in subdivisions . . . and 5 of this section must be made by orders of the court entered upon the minutes thereof, and are effective for all purposes when so entered, ...” In the case of Kimple v. Conway, 69 Cal. 71 , [ 10 Pac. 189 ], it was held that no appeal was allowed from an order granting a motion for a nonsuit; nor from a judgment of nonsuit. In…