ROBERT HAAKENSTAD, APPELLANT,
v.
JOSEPH A. OSBORNE, APPELLEE
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The court held that res judicata does not attach until a final order is entered in the first case, and the clerk's notation was not a final order.
Appellant sued for non-payment of a promissory note. The first case was dismissed based on a clerk's notation for lack of prosecution, but no formal o…
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PER CURIAM.
This is an appeal from a final judgment dismissing appellant’s suit with prejudice. We reverse.
Appellant brought an action in 1979 against appellee for damages arising out of the non-payment of a promissory note. Trial was set for February 5, 1980, but apparently neither appellant nor his attorney appeared when the case was called. The parties agree that the trial court did not enter an order on February 5, 1980, and that the only record of what transpired is a notation by the court clerk that the trial court announced: “a dismissal of instant cause for lack of prosecution.” Thereafter, appellant filed an amended motion to reinstate cause and set final hearing. Appellee filed a motion to dismiss with prejudice based upon appellant’s failure to appear at trial. Both motions were noticed for hearing at the same time. After the hearing the trial court denied appellant’s motion, but did not rule upon appellee’s motion.
In March 1980, appellant filed an identical action for damages and the case was assigned to a different trial judge. Appel-lee moved to dismiss with prejudice on the ground of res judicata. The trial judge agreed with appellee and entered a final order of dismissal with prejudice. This appeal of that order followed.
We reverse on the ground that no final order has been entered in the first case. The clerk’s notation in the action commenced in 1979 was certainly not an order and the trial court’s subsequent order in that case did not dismiss the action with or without prejudice. Until such time as a final order is entered in the first case and a determination is made of the nature of dismissal, res judicata does not attach.
REVERSED.
ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.