Lewis v. Hogan
| Decision Date | 31 October 1892 |
| Citation | 53 N.W. 367,51 Minn. 221 |
| Parties | Robert P. Lewis v. Michael Hogan |
| Court | Minnesota Supreme Court |
October 18, 1892, Submitted on briefs
Appeal by plaintiff, Robert P. Lewis, from an order of the District Court of Ramsey County, Kelly, J., made June 2, 1892 striking from the files his demand for another trial of the action.
The plaintiff, in March, 1889, brought an action of ejectment against the defendant, Michael Hogan, for the recovery of certain real estate in Ramsey County. The action was tried October 24, 1889, before Otis, J., a jury being waived findings were made, and judgment entered January 14, 1890, in favor of plaintiff. Defendant, in due time, made demand for a second trial under the statute. On the second trial defendant had a verdict, and judgment was entered thereon May 29, 1891. The plaintiff, on November 25, 1891, served, and afterwards filed, a demand for another trial of the action. Defendant moved to strike this demand from the files, which motion was granted, and plaintiff appeals.
Order affirmed.
W. K Gaston, for appellant.
1878 G. S. ch. 75, § 11, is purely remedial, and should be liberally construed. There is nothing in the language of either § 11, or § 12, to show that only two trials of the action are contemplated. Had the legislature so intended, it is to be presumed that they would have expressly said so. On the contrary, the words and phrases used seem to indicate that more than two trials are contemplated. In a case like this, it would seem not only reasonable, but necessary, that another trial be had. There are two judgments in the case, each directly opposed to the other. Why is the second any better than the first? Chamberlin v. McCarty, 63 Ill. 262.
Wm. G. White, for respondent.
Before the revision of 1866, the statute gave the plaintiff in an action of ejectment no right to a second trial, and left the granting of a third trial in certain cases to the discretion of the court. 1851 R. S. ch. 74, §§ 5, 6, 7; 1858 Pub. S. ch. 64, §§ 5, 6, 7. By 1866 G. S. ch. 75, §§ 5 and 6, the provision as to a third trial was repealed. It would seem clear that the repeal of this provision was intended to cut off a third trial, either as of right, or otherwise. The language of 1878 G. S. ch. 75, § 12, is conclusive of plaintiff's claim in this case. See Crews v. Ross, 44 Ind. 481; Ewing v. Gray, 12 Ind. 64; Bellinger v. Martindale, 8 How. Pr. 113.
This is an action for the recovery of real property. A first trial resulted in a judgment for the plaintiff. As permitted by the statute, the defendant availed himself of the right to have another trial. The second trial resulted in a verdict and judgment for the defendant. The plaintiff then asserted the right by statute to have still another trial. This was denied. The question here is, was the plaintiff, against whom judgment has been only once recovered, entitled to a third trial? This must be answered in the negative.
Since the abolition of the fictions attending the common-law action of ejectment, and the adoption of the practice of requiring all actions to be prosecuted in the names of the real parties in interest, and upon real, and not fictitious, issues,...
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