Philpott v. Brown & Ryan Bros.

Maxwell J. This action was 'brought by the defendants in error against the plaintiffs in the district court of Lancaster [388] county upon a promissory note to recover the sum of $195.30 and interest. The plaintiffs herein (defendants below) interposed two defenses. 3 st. That an action was brought on said note in the county court of said county, which on the 5th day of May, 1883, was dismissed. 2d. That afterwards a second action was brought thereon, which was also dismissed. There is also a plea by Court-nay of want of consideration. The court below rendered judgment in favor of the defendants herein. The judgments set up as a defense were rendered by reason of a failure to prosecute the action, and were not upon the merits. The question here presented was before this court in Cheney v. Cooper, 14 Neb., 415, and fully examined and considered, and it was held that where an action was dismissed by the court without a hearing upon the merits, the order of dismissal will not bar a future action. We adhere to that decision, and it is conclusive in this case. The de-' fense of want of consideration is not relied upon. There is no error in the record, and the judgment is affirmed. Judgment affirmed. The other judges concur.