This is an action of forcible entry and detainer, and the appeal is from the following judgment:
“This cause coming on to be heard, comes the plaintiff by his attorneys, Frank Weldin and W. E. Spence, *501also comes the defendant hy his attorneys, Ward & Ward. The defendant having filed his motion to quash the writ herein and the said motion coming on for hearing, and the court, being fully advised, doth sustain said .motion and quashes the writ issued in this cause, whereupon the court declares the defendant to be in possession of the premises involved in this action, towit:
“The southeast quarter of the southeast quarter of section twenty-nine, township twenty north, range nine east, and the cause is set for trial.
“The defendant, although given permission to file his answer, and cross-complaint and try the cause, refused so to do, wherefore the court finds for the plaintiff for the possession of said premises.
. “It is therefore, by the court, considered, ordered and adjudged that the plaintiff, Dick Bunke, do have and recover of and from the defendant, J. J. Carpenter, the possession of the southeast quarter of the southeast quarter of section twenty-nine, township twenty north, range nine east, and the plaintiff-pay all costs herein expended, for which execution may issue.”
It does not appear upon what ground the court quashed the writ of possession, as there is no bill of exceptions in the case; but it does appear, from the judgment itself, that “the court declared the defendant to be in possession of the premises” after quashing the writ. So that thereafter the cause stood on the docket as oné in which the plaintiff was asking the restoration of premises wrongfully taken and held by the defendant, and, defendant refusing to answer, judgment was properly rendered as in other cases of default—no damages having been claimed or awarded.
Counsel for appellant cite cases to the effect that where an action of forcible entry or unlawful detainer is dismissed by the court or withdrawn by the plaintiff, the defendant is entitled to judgment for restitution. But this action was neither dismissed by the court nor withdrawn by the plaintiff, and there was an order that he be declared in possession of the premises; but quashing the *502writ was not decisive of the merits of the case. This is ■true because the action could have been brought, and the right of possession adjudicated, if no writ of possession had issued. It is expressly so provided by statute. Section 3651, Kirby’s Digest.
Judgment affirmed.