The opinion of the court was delivered by
The appellant complains because the trial court overruled his “plea in abatement.” The action, which was for forcible detainer, originated in the justice court and was appealed to the district court. Two juries in that court failed to agree, and the cause was continued to a later term, by which time the defendant had vacated the premises. The plea in abatement was based upon that fact, also upon the fact that certain orders of court in another action had brought about the eviction of the appellant, and'consequently that the questions involved in this case had become moot. The truth of the facts alleged in the plea in abatement does not appear to have been in dispute. The plea was virtually a motion to dismiss (Ferris v. Ferris and Trustee, 25 Vt. 100), and it should have been sustained. (Geinger v. Krein, 103 Kan. 176, 173 Pac. 298; Hall v. Briggs, 104 Kan. 277, 178 Pac. 447. See, also, citations in Shoe Co. v. Dawson, 94 Kan. 668, 669, 146 Pac. 996.)
The trial court did have and still has the problem of the costs incurred below, but can handle that matter as it may be advised.
Reversed, with instructions to abate or dismiss the action.