The opinion of the court was delivered by

The plaintiff, E. T. Mears, alleged that he was the owner and in possession of certain. real estate described in his petition, and prayed for judgment quieting his title. The defendant, Sarah A. Wilkinson, in her answer alleged that she was the owner and in possession of the property, and prayed for judgment quieting her title., The evidence tended to prove that the plaintiff was in possession claiming under a tax deed and that he had made improvements on the property. The evidence also tended to prove that the plaintiff held such possession as the agent of the Neosho Investment Company, which company had attended to the taxes and cared for the property for the defendant, who’ at an earlier date, held a mortgage thereon, which mortgage was afterward foreclosed; that the defendant was the purchaser at the foreclosure sale, and held the title to the property in fee, unless devested by the tax deed; and that there was an excess levy of one mill on the dollar levied for state purposes on property in Montgomery county included in the amount for which the property was sold for taxes. Evidence was also given of the amount of taxes paid by the plaintiff, and interest thereon. Other evidence tended to show that just previous to the tax sale in question the investment company had notified the plaintiff to pay no more taxes on property in their charge, but that no notice of this fact had been given to the defendant.

Upon all the evidence, of which the foregoing is an outline, substantial questions of law and fact were presented for adjudication upon the issues made by the *275pleadings. Both of the parties produced evidence tending to support their respective claims, which were duly submitted to the court for decision and judgment.

At the conclusion of the evidence the court took the case under advisement until a later day, and then announced the decision that neither party was entitled to recover, and therefore dismissed the suit at'the cost of the plaintiff. Thereupon each party in turn moved for judgment, which motions were denied. The defendant further moved for judgment on the pleadings and evi-' dence, which was also denied. She excepted to these rulings. Judgment was entered by the court dismissing the action at the cost of the plaintiff.

The statute provides that actions may be dismissed:

“First, by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court.

“Second, by the court, where the plaintiff fails to appear on the trial.

“Third, by the court, for the want of necessary parties.

“Fourth, by the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.

“Fifth, by the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.

“Sixth, in all other cases, upon the trial of the action the decision must be upon the merits.” (Civ. Code, § 397; Gen. Stat. 1901, § 4846.)

This case was not within any of the foregoing provisions for dismissal, and the decision shopld have been upon the merits. It is argued by plaintiff that the defendant lost nothing, because she had no right to recover ; but that was the very matter she had the right to have decided. (Moore v. Toennisson, 28 Kan. 608; Hargis v. Robinson, 70 Kan. 589, 79 Pac. 119; Amos v. Loan Association, 21 Kan. 474; Venable v. Dutch, 37 Kan. 515, 15 Pac. 520, 1 Am. St. Rep. 260.)

We express no opinion upon the merits of the suit. *276It was the province of the trial court to determine the facts and pronounce judgment thereon. Having failed to do so, the judgment of dismissal is reversed and the cause remanded for a new trial.