Flibotte v. Mullen

Gtleillan, C. J. There are two of these actions, in each of which’ there is an appeal by defendant from the judgment. In the first the judgment dismissed the action for insufficiency of the complaint. The only objection defendant makes to it is that the case had been tried, and that defendant was then entitled to have the cause determined on the merits. But there is no case nor bill of exceptions, — nothing to show at what stage of the case, whether pending the trial or before or after the final submission of the case, the order for dismissal was made. And there is therefore nothing in the record from which we can say that the court could not order a judgment of dismissal. [145] In the second, which was for the same cause as the first, the only objection made is that the court should have sustained defendant’s answer, alleging the pendency of the former action. The case is presented, as the first is, without any statement of the case or bill of exceptions, so that we know what took place at the trial only from the facts found by the court below, to wit, the commencement of the first action, and its dismissal before the commencement of the second action. On those facts the answer could not be sustained. Both judgments affirmed.