Mort.

This action greatly resembles the one which was the subject of the appeals in Empire Investment Co. v. Mort, 169 Cal. 732 , [ 147 Pac. 960 ]. The same parties are involved in the controversy and the same contract which was there under consideration is important in this suit. In this as in that case the Empire Investment Company is suing in ejectment for possession of the same land which that corporation sought to retake in the earlier litigation. This appeal is from a judgment adverse to plaintiff.

The other appeals were pending and undetermined when the day arrived which was specified in the contract of sale for the payment of the second installment on the purchase price. This sum not having been paid, the Empire Investment Company again brought suit in ejectment and for damages. Defendants answered, interposing equitable defenses, setting up their alleged rights under the contract of sale, and also interposed a plea in abatement based upon the pendency of the other action.

When the dase was called for trial plaintiff demanded a hearing by the court upon the plea in abatement. It was held and the court determined the question presented by that defense adversely to the…