
    GRIGSBY, Appellant, v. PLANKINTON BANK, et al., Respondents.
    (105 N. W. 247.)
    Action. — Quieting Title — Amended Answer' for Foreclosure of Mortgage — Counterclaim—Delay..
    In an action to .quiet title to realty, held, fallowing the decision .of this court in Murphy v. Plankinton Bai\k, .20 S. D. 178, 105. N. .W. 245, that, .while the defendant bank’s right to foreclose its alleged mortgage on the land exists, yet its right to foreclose it in this action, asserted at so late a date, will be denied, .and the former order of this court, allowing an amended answer by way of such .foreclosure, is modified, and the order appealed from is, to that extent, reversed.
    (Opinion filed March 1, 1906.)
    Appeal from .Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge. . . .
    . On rehearing. Action by William E. Grigsby against The Pl'ankiütom' Bank and 'Others, to quiet title to: realty. From an order granting defendants.’ motion to serve and file an amended answer and 'counterclaim, plaintiff .appeals.
    Former opinion modified, and order appealed from modified.
    For former opinion, see 18 S. D. 330; 100 N. W. it27.
    
      Grigsby & Grigsby, and Davis, Lyon & Gates (Aikens & Judge, of counsel), for Appellant.
    
      Rogde & Winans {James P. Trottman, of counsel), for Respondents.
    No brief was filed by either party upon die points involved in the appeal from said order.
   FULLER, P. J.

This case comes to this court on appeal from an order .granting- defendants’ motion to serve and file an amended answer 'and counterclaim in an .action to: quiet title to real, property. For the reason stated in Murphy v. Plankinton Bank, 105 N. W. 245, presented upon the same abstract and briefs and decided herewith on rehearing, such order is reversed to the extent 'that the same provides for the foreclosure of an alleged mortgage on the lands in controversy, and the case is remanded, with the direction that the count below eliminate from such amended answer and counterclaim all allegations essential to foreclosure of the mortgage.  