
    W. S. Gillman, appellant, v. Frank Topinka et al., appellees.
    Filed June 9, 1904.
    No. 13,480.
    Appeal from the district court for Box Butte county: Jabíes J. Harrington, Judge.
    
      Reversed with directions.
    
      R. C. Noleman and W. G. Simonson, for appellant.
   Ames, C.

This is an action to foreclose a real estate mortgage, begun by the usual petition and due service of process. The mortgagors made default; but another defendant, who claimed some interest in the premises — the record does'not disclose what — appeared and moved to dismiss the action, for the alleged reason that the subject matter of it had been previously adjudicated between parties other than those to this suit. No answer or other pleading was filed. The court sustained the motion and rendered a judgment of dismissal. The plaintiff appeals. There is no appearance for the appellee or appellees in this court.

It is recommended that the judgment of the district court be reversed and the cause remanded, -with instruí-* tions to render a decree as prayed in the petition, uni a defense shall be established by pleadings and proofs.

LETTON and Oldhabi, CC., concur.

By the Court:

For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded, with instructions to render a decree as prayed in the petition, unless a defense shall be established by pleadings and proofs.

Reversed.  