
    [Civ. No. 829.
    Second Appellate District.
    August 27, 1910.]
    MARIE FORRESTER, Respondent, v. OSCAR LAWLER, Appellant.
    Action upon Notes—Plea of Ees Adjudicata—Motion to Dismiss on Answer—Improper Procedure.—In an action on notes, where the answer separately pleaded that plaintiff had brought a former action upon the same notes, which had been by consent of the parties dismissed by the court, and judgment regularly entered for costs, and after filing the answer defendant moved to dismiss this action because the former'judgment was a bar to recovery, held, upon appeal from the order denying the motion, that, conceding, for appellant all that he claims for Ms answer, and that the original action and judgment pleaded therein was res adjudicata as to all matters involved, nevertheless, a motion to dismiss on account of the sufficiency of the answer as a bar to recovery was not the proper procedure.
    Id,—Nonappealable Order—Dismissal of Appeal.—An order of the court refusing to dismiss an action is not itself appealable, and an appeal taken therefrom must be dismissed.
    APPEAL from an order of the Superior Court of Los Angeles County denying a motion to dismiss an action. Walter Bordwell, Judge.
    The facts are stated in the opinion of the court.
    Lon K. Wisehart, Carroll Allen, Henry S. Van Dyke, and Lawler, Allen, Van Dyke & Jutten, for Appellant.
    Job Harriman, for Respondent.
   ALLEN, P. J.

In an action brought by respondent as plaintiff against appellant as defendant she sought to recover judgment upon two certain promissory notes. The answer, in addition to pleading want of consideration, for a separate answer alleged that an action had theretofore been brought by plaintiff upon the same causes of action between the same parties, which action had been, by consent of the parties, dismissed by the court and judgment regularly entered therein, for costs. Defendant then, after such answer had been filed, moved the court for dismissal of the pending action, for the reason that the original action dismissed by consent was a bar to the present action. This motion the court denied, and from the order of the court denying the same defendant appeals.

Conceding for appellant all that he claims for his answer, and that the original action and judgment pleaded therein was res adjudicata as to all the matters involved, nevertheless, a motion to dismiss on account of the sufficiency of the answer as a bar to recovery was not the proper procedure. In addition to this, an order of the court refusing to dismiss an action is not itself appealable. (Garthwaite v. Bank of Tulare, 134 Cal. 243, [66 Pac. 326].)

This appeal is, therefore, dismissed.

Shaw, J., and James, J., concurred.  