Field, J., and Baldwin, J., concurring.

The first and second assignments of error are not supported by the record.

The third is not well taken. To support a plea in abatement *523founded on the pendency of a prior action, it is necessary to show that process was issued in such action. (See Weaver v. Conger, 10 Cal.)

The fourth is not supported by the record. Upon the whole, it appears that the appeal was taken merely for delay, and the judgment is affirmed, with ten per cent, damages.