Moore

—This action was instituted to recover damages from the defendant, based upon an alleged breach of a promise of marriage made by him to the plaintiff. The jury returned a verdict for the plaintiff; from the judgment rendered thereon, and an order denying a new trial, the defendant has appealed.

Among other matters by way of defense, the defendant pleaded in abatement that another action was pending at the time this suit was brought, between the same parties, and for the same cause of action.

It is contended that the judgment of dismissal of a former action between the same parties, and for the same cause, was not admissible in evidence on the trial of the present cause, because, as is claimed, it is no answer to a plea in abatement of a pending action that a judgment of dismissal of the former action is entered after the trial of the second action has commenced, but before its conclusion. This contention, we think, is not well .founded. A dismissal of a prior action may be made and judgment entered at any time before the trial of the second action is completed. (Dyer v. Scalmanini, 69 Cal. 639 ; Hixon v. Schooley, 26 N. J. L. 461, 462; Averill v. Patterson, 10 N. Y. 501 .)

The…