I conceive the only question in this matter to be whether the writ of error should be dismissed as having been directed to a judgment not final in character. If it was not a final judgment the writ of error should be dismissed; if it was a final judgment the writ should not be dismissed.

I am not concerned about the pleas which defendant interposed, whether they were meritorious or filed within the time prescribed by law, nor do I deem it to be material that the plaintiff took issue with the court as to the propriety of allowing the pleas to be filed in the circumstances disclosed by the record. The plaintiff was given an opportunity to reply to them and declined to do so.

The record discloses that the plaintiff "declined to join issue of the pleas." A judgment was entered called a judgmentnon prosequitur. In fact it was not such a judgment, notwithstanding the name given to it. On the other hand it was a final judgment in that it was one in "favor of the defendants and against the plaintiff" for want of prosecution. Then follows in the judgment that which gives it finality as follows: "It is further ordered that the plaintiff take nothing by his plaint herein and that this cause stand dismissed at the plaintiff's cost." The nature or character of a thing cannot be fixed by merely giving it a name. It must be classed according to its properties or elements. *Page 46

According to Tidd's Practice, Vol. 1, p. 458, a nonprosequitur and non-suit mean the same thing. At common law there was no such thing as a non-suit. It was nothing more than a mere declaration by the court that the plaintiff had made default in appearing at the trial to procure his suit. Prosyer v. Minors, 7 Q. B. Div. 329. Practically the same meaning is given to the term under the statutes. Herrik v. Pritz, 6 Ill. App. 208; Webster's International Dictionary.

The judgment in this case was more than a discontinuance or voluntary dropping of the case by plaintiff. It was a judgment against him that he recover nothing on his declaration and the cause be dismissed at his cost.

The end to be attained by the writ of error may be a correction of the judgment so that the plaintiff may if desired bring another action, but I do not consider that the merits of the pleas may be determined in this case.

I agree that the motion to dismiss be denied.