Eastman v. Linn

• Decision Date: 01 January 1873
• Citation: 20 Minn. 387
• Parties: ENOCH M. EASTMAN and others v. JAMES J. LINN.
• Court: Minnesota Supreme Court

Page 387

20 Minn. 387

ENOCH M. EASTMAN and othersv.

JAMES J. LINN.

Supreme Court of Minnesota.

Appeal by plaintiffs from an order of the district court, Meeker county, in effect denying them a second trial of the action.

After entry of a judgment against plaintiffs, they, complying with the requirements of section 2, c. 72, Laws 1867, demanded a second trial and placed the cause on the calendar of the court at a general term for trial. On defendant's motion the court ordered the cause struck from the calendar, and from that order the appeal is taken.

F. Belfoy, for appellant, cited:

Beebe & Shaw, for respondents, cited:

BERRY, J.

The plaintiffs commenced an action under section 1, c. 75, Gen. St., for the purpose of determining the adverse claim, estate, or interest of defendant in and to certain lands whereof they, the plaintiffs, were in possession. Defendant's answer denies that plaintiffs have any claim or title to or interest in the premises; denies, also, the lawfulness of plaintiffs' possession thereof, and alleging title in himself in fee-simple and that plaintiffs unlawfully and wrongfully withhold possession thereof. Defendant demands judgment against plaintiffs for possession, with damages for withholding the same, and for mesne profits.

The subject of plaintiffs' action is the adverse claim, estate, or interest of defendant, which plaintiffs seek to have determined invalid. Defendant asserts the validity of the claim, estate, and interest thus attacked by plaintiffs, and assuming that it will be declared valid, he proceeds to pray for the affirmative relief to which its validity entitles him. Evidently, then, the answer sets up a counter-claim, i. e., "a cause of action * * * connected with the subject of the (plaintiffs') action." Gen. St. c. 66, § 80; Moak's Van Santv. 551,* 565;* Jarvis v. Peck, 19 Wis. 74. The pleading of the counter-claim, with the demand for relief, is, in effect, the instituting of a cross-action, (in the nature of ejectment,) for the recovery of the real property in controversy, the allegations of the answer being such as would be sufficient in an action of that nature. Moak's Van Santv. 326, 549;* 2 Estee, Pl. 211-249. Upon this state of facts, we see no reason why section 2, c. 72, Laws 1867, which authorizes "any person against whom a judgment is recovered, in an action for the recovery of real property," to demand another trial upon complying with certain specified conditions, is not applicable to this...