Pyle

Defendant appeals from the judgment and order denying his motion for a new trial.' The action is one for damages based upon a breach of a promise of marriage.

1. Defendant pleaded a judgment in "bar based upon the following facts: Plaintiff filed her complaint, and defendant answered. The time arrived for trial, and the plaintiff’s attorney failed to appear. Thereupon defendant answered ready, and made a motion that the action be dismissed by reason of nonappearance of plaintiff. At this stage of the proceeding, plaintiff’s attorney appeared and declined to further prosecute the action. The court thereupon ordered the action dismissed for want of prosecution, and gave judgment in favor of defendant for his costs. Thereafter a new complaint was filed upon the same cause of action, and defendant, by his answer, pleaded this aforesaid judgment in bar to the prosecution of the present action.

Section 581 of the Code of Civil Procedure declares that an action may be dismissed or a judgment of nonsuit entered in the following cases:

It is also insisted that if this judgment of dismissal may not be pleaded in bar because not a final judgment in the sense that the time for appeal…