
    DeWitt C. Sutphen et al., appellees, v. George A. Joslyn, appellant; Gladys E. Kiplinger, appellee.
    Filed January 31, 1913.
    No. 17,236.
    Appeal: Relief. Where it appears that the district court has erroneously vacated a former judgment and granted a new trial of an action in that court, the former judgment should be reinstated and affirmed.
    Appeal from the district court for Douglas county: Alexander C. Troup, Judge.
    
      Reversed, and judgment of district court reinstated.
    
    
      John G. Gowin and J. J. Sullivan, for appellant.
    
      Rich, Gilbert & Rolan, contra.
    
   Barnes, J.

Gladys E. Kiplinger, formerly Gladys E. Sutphen, by her petition in equity, obtained an order setting aside a decree for the specific performance of a contract for the sale of certain real estate, and for a new trial; she having been a minor when the decree was rendered against her. By that decree it was adjudged that her father and grandfather took the fee title to the land in question therein under the will of her grandmother, Emily M. Sutphen; that as such fee owners they could convey a good title thereto; and the defendant Joslyn was required to specifically perform his contract of purchase thereof. After the new trial was granted she filed a demurrer to the answer and cross-petition of defendant Joslyn; the grounds of her demurrer being: First. That the court liad no jurisdiction over the person of the defendant, or the subject matter of the action. Second. That several causes of action are improperly joined. Third. The cross-petition did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer, and dismissed the answer and cross-petition. From that judgment defendant Joslyn has appealed. This case, therefore, presents for our determination the identical question decided in Sutphen v. Joslyn, ante, p. 34, wherein it was held that by the decree of July 10, 1893, which is the one in question, the plaintiffs in that action took the fee to the land in question, and that their deed conveyed a good title to the defendant Joslyn.

For the. reasons stated in our - opinion in Sutphen v. Joslyn, ante, p. 34, we conclude that Joslyn’s answer and cross-petition stated a good defense to the claims of the minor heirs of Charles D. Sutphen, of whom the appellee herein is one; that the trial court erred in sustaining the demurrer and vacating its former decree.

The judgment of the district court is therefore reversed, and the decree of July 10,1893, is reinstated and affirmed.

Judgment accordingly.

Fawcett, J., not sitting.  