
    SELMER QUAMMEN v. JOHN SOLBERG.
    
    November 25, 1927.
    No. 26,303.
    Reversal of judgment terminated first action and did not sustain plea of former action made in second action on same cause.
    Where on appeal taken on questions of law alone a justice court judgment was reversed, the suit is no longer pending within the rule which forbids a second suit on. the same cause of action during the pendency of the first.
    Justices of the Peace, 35 C. J. p. 852 n. 23.
    Defendant appealed from a judgment of the district court for Chippewa county, Baker, J.
    Affirmed.
    
      John W. Peterson and J. 0. Maugland, for appellant.
    
      O. D. Bensel and W. W. Merrill, for respondent.
    
      
       Reported in 216 N. W. 252.
    
   Taylor, C.

Plaintiff obtained a judgment against defendant before a justice of peace of the county of Chippewa. Defendant appealed to the district.court on questions óf law alone, and that court set aside the judgment. Some two months later plaintiff brought another suit against defendant before the justice of the peace on the same cause of action. Defendant interposed an answer in which he asserted that another action between the same parties on the same cause of action was pending in the district court. At the trial it was conceded that the causé of action was the same as in the former action. The justice rendered judgment for plaintiff, and defendant again appealed to the district court on questions of law alone, The district court affirmed the judgment of the justice court and rendered judgment for the amount thereof and the additional costs. Defendant appealed to this court and contends that the district court erred in not dismissing the action on the ground that the former action was still pending.

The reversal by the district court of the judgment of the justice court in the first case terminated that action. Terryll v. Bailey, 27 Minn. 304, 7 N. W. 261; Daley v. Mead, 40 Minn. 382, 42 N. W. 85. Consequently the record in the present case fails to show that the first is still pending within the meaning of the rule. Althen v. Tarbox, 48 Minn. 18, 24, 50 N. W. 1018, 31 A. S. R. 616; Seeger v. Young, 127 Minn. 416, 422, 149 N. W. 735.

Judgment affirmed.  