Garthwaite

This is an appeal by plaintiffs from the judgment of the court below dismissing the action upon the ground of want of prosecution.

The appellants contend, among other things, that the court below erroneously admitted in evidence the judgment-roll in a former action entitled B. F. Smith, Plaintiff, v. Bank of Tulare, a Corporation, and Pacific Bank, a Corporation, Defendants, No. 2340; and this contention must be sustained. The latter action was commenced in the same court in which the case at bar is pending, on August 25, 1890; and its purpose was to recover possession of a certain check or draft drawn by the Bank of Tulare on the Pacific Bank for seven hundred and fifty dollars, payable to the order of the plaintiff therein, B. F. Smith, which check or draft was alleged in the complaint to be unlawfully in the possession of the defendants in said case. It appears that the check was sent by one Love joy, who resided at Tulare in Tulare county, to Smith, who resided at Oakland, in Alameda county, through the United States mail, and that it was taken from the postoffiee by some person other than Smith, that Smith’s name was forged on the back of the check, and that the Pacific Bank…