
    Herman Petersen, Appellant, v. Clair Strawn, Appellee.
    APPEAL AND EEEOR: Right of Eeview — Instituting New Action. A plaintiff may not appeal from a judgment in abatement of his action when, immediately following said adverse judgment, he institutes a new action on the same claim, under facts which avoid the former plea in abatement.
    
      
      Appeal from Woodbury District Cmort. — C. C. Hamilton, Judge.
    March 13, 1923.
    The defendant is the tenant of plaintiff. Plaintiff sued on one of three rent notes of $437.50, upon which it was alleged that there was $284, with interest, due. The notes Avere given in connection with a Avritten lease on the land. Plaintiff attaches a copy of the note and the, lease. A landlord’s attachment was asked, and the property attached. Plaintiff also sued for damages to trees and shrubbery, and for failure on the part of defendant to properly farm the crops. A clause in the lease as to the amount of rent to be paid provides that defendant is to pay “$12.50 per acre for all pasture and hay land, subject to measurement. ’ ’ Defendant pleaded that the note and lease were one and the same transaction, and should be taken and construed together; that the note in question was given for pasture and hay land, and given subject to the provision of the lease just referred to; that he was ready and willing to pay plaintiff the sum of $12.50 per acre for all pasture and hay land, whenever the number of acres had been ascertained by measurement, as provided by the lease, and offered to confess judgment for any sum that Avould be due after the same had been measured, as provided in the lease; that the premises have never been measured, and plaintiff has failed to have the same measured; and that, therefore, the rent is not at this time due or payable. The case Avas tried to a jury, and at the conclusion of the evidence, the trial court struck from the record the note and evidence in reference thereto, on the theory that the measurement of the land was a condition precedent to the right of plaintiff to maintain the action. The court submitted other issues to the jury, and they returned a general verdict for plaintiff for $1.00, and answered interrogatories, first, that they allowed plaintiff $1.00 damages for injury to trees, etc., and allowed nothing on account of failure to farm the crops. Judgment was entered on the verdict. Appellant makes no complaint on this appeal as ■ to the matters last mentioned.
    Appellee makes a showing under Code Sections 4151 and 4152 (Supreme Court Rules, Sections 41 and 42), claiming that appellant has no further right to prosecute the appeal. The showing is verified by affidavit, which is not denied by appellant. By this it appears that, a few days after the trial of the other case, and before plaintiff had perfected his appeal, plaintiff brought another action on the same note and lease, wherein plaintiff alleged in his petition that $81 had been paid on the note; that the hay and pasture land had been duly measured, and the amount of the same found to be 31% acres; that there is due on the note $300.25; and that the action is commenced to recover rent accrued in one year on the premises described,— and asked that a writ of attachment issue for the enforcement of his lien. Appellee’s showing also includes the defendant’s answer and counterclaim to said suit, and shows that said .new action is now pending in the district court.
    
    Appeal dismissed.
    
    
      Free (& Fichus, for appellant.
    
      Prichard <& Prichard, Prichard & Sears, and C. N. Jepson, for appellee.
   Per Curiam.

Appellant cites Cavanagh v. Iowa Beer Co., 136 Iowa 236, to support his contention that the provision of the lease was not a condition precedent. Appellee cites Fink v. Chambers, 95 Mich. 508, Montgomery v. Hunt, 93 Ga. 438, Hickman v. Rayl, 55 Ind. 551, and Todd v. State Bank, 182 Iowa 276 (3 A. L. R. 971), to sustain his contrary contention that the clause is a condition precedent. We deem it unnecessary to discuss that question, except to say that, in view pf what was done, it should have been considered and should now be considered as an abatement, rather than in bar, in so far as it relates to the rent and measurement of the land. It is quite clear that appellant has no right to further prosecute the appeal. He may not have two suits pending in the courts for the same thing at the same time. The proceedings taken by him after the first-trial, from which this appeal is taken, are in the nature of an abatement, or an abandonment of his right to appeal. Furthermore, he has acquiesced, not only in the judgment rendered in-the other case, but in the very ruling of the trial court of which he now complains, since in his secopd action he alleges that he has measured the land, as provided in the lease, and asks judgment for the number of acres shown by the measurement. The appeal is — Dismissed.  