Plunkett

Motion to dismiss appeals. The complaint alleged two causes of action for damages—the first one was based upon alleged misrepresentation, and the second one upon alleged negligence. Each of the two defendants' alleged affirmative defenses of res judicata and estoppel as to each cause of action. Pursuant to the provisions of section 597 of the Code of Civil Procedure, a trial of those special defenses was had before the trial of any other issue in the case.

The court found: (1) That an order of a referee in bankruptcy has determined the issue alleged in the first cause of *86 action herein, and that said order acts as collateral estoppel and res judicata as to that issue; and (2) that said order has not determined the issue alleged in the second cause of action herein, and it does not act as collateral estoppel or res judicata as to that issue. As conclusions of law, the court stated that the plaintiff is barred from prosecuting the first cause of action; and is not barred from prosecuting the second cause of action.

A formal judgment, based upon those findings and conclusions, was entered on October 10, 1961. The judgment provided : ‘ ‘ That the first count of the complaint be…