#### J. Hallaboards, Appellant, v. City of Pinckneyville, Appellee.

1. Appeals and errors—when propriety of giving peremptory instruction not subject to review. The propriety of the giving of a peremptory instruction is not subject to review where it does not appear that the bill of exceptions contained all the evidence heard by the trial court.

2. Appeals and errors—when reversal may be pro forma. If the appellee does not file a brief the Appellate Court of the Fourth District may order a reversal pro forma.

3. Res judicata—what does not bar second suit. A voluntary dismissal of one action does not bar the subsequent institution of a second suit for the same cause of action.

Action in case for personal injuries. Appeal from the Circuit Court of Perry county; the Hon. B. R. Burroughs, Judge, presiding.

Heard in this court at the August term, 1908.

Reversed and remanded.

Opinion filed March 4, 1909.

I. B. Spilmah and A. H. Babe, for appellant.

No appearance for appellee.

Me. Pbesiding Justice Myebs

delivered the opinion of the court.

This was an action on the case brought by J. Hallaboards against the city of Pinckneyville, Illinois to recover damages for a personal injury to himself caused by a fall on a defective sidewalk, which occurred on the 14th day of June, 1907. The cause was brought to the November term, 1907, and was continued for service at that term, and at the May term, 1908, such proceedings were had that the plaintiff appealed from the decision of the court in overruling a demurrer to one of the defendant’s pleas.

Appellee has filed no brief; in this case and under Buie 27 of the Buies of Practice of this court, the judgment may be reversed pro forma. We have, however, examined the record and are clearly of opinion that the case should be reversed on the merits. The Cir*121cuit Court erred in overruling the demurrer to the first special plea in holding that the commencement and dismissal of one action without giving the notice required by Section 6, Chapter 70, Bev. Stat., was a bar to. another action for the same cause, which was begun after due and timely notice given. The voluntary dismissal by the plaintiff of the first suit was no bar to the second. This we understand from the record was the only question involved. Judgment reversed and cause remanded.

Reversed and remanded.