Porter

(after stating the facts as above). The motion to dismiss the writ of error is denied.

It is based upon these grounds:

“First. That said order is not a final order or judgment within the contemplation of the Alaskan Code.

“Second. That admitting, pro argumenti, that the order denying the motion to discharge from custody was final and therefore appealable, defendant had made a prior application which had been denied, and had not appealed from the decision of the court, and the order was therefore res judicata.”

The Code referred to permits a writ of error from this court to review a final order of a District Court of Alaska. Section 504, Carter’s Ann.Code Civ.Proc. Alaska; Tornanses v. Melsing, 106 F. 775 , 45 C.C.A. 615 . The prior order refusing the discharge of the defendant from custody was made before the trial of the case, and consequently before judgment, and was therefore interlocutory. The cause of action counted on in the amended complaint on which the case was tried was a different cause from that stated in the original complaint upon which the prior arrest was based.

Passing the point made as to the propriety of permitting such a change of the cause of action, it…