Sammons v. Pike

• Decision Date: 17 July 1908
• Citation: 105 Minn. 106,117 N.W. 244
• Parties: SAMMONS v. PIKE et al.
• Court: Minnesota Supreme Court

105 Minn. 106

117 N.W. 244

SAMMONS

v.PIKE et al.

Supreme Court of Minnesota.

July 17, 1908.

Appeal from District Court, Steele County; Thomas H. Buckham, Judge.

Action by Harriet T. Sammons, executrix of Anna Leslie Higbie, against Kate J. Pike and R. E. Stewart. Judgment of dismissal, with costs, on second trial in ejectment, and defendants appeal. Reversed, with directions.

Syllabus by the Court

Section 4431, Rev. Laws 1905, construed, and held to entitle defendant in an action in ejectment, who has paid the damages and costs awarded against him and thus obtained a second trial, to a return of the amount so paid, if he succeeds on the second trial on the merits, or the action be voluntarily dismissed by plaintiff.

A second trial of an action in ejectment, obtained as of right under the statute, extends to all questions or issues presented by the pleadings pertinent to the title and right of possession of the property, including damages for use and occupancy.

There can be no valid judgment without an action or proceeding in which to render it, and a dismissal of the action, though a previous judgment has been rendered therein, extinguishes action, judgment, and all, leaving the parties in the position they were in before the action was commenced. L. W. Collins, W. A. Sperry, and Wm. H. Hallam, for appellants.

Leach & Reigard, for respondent.

BROWN, J.

Action in ejectment, in which plaintiff demanded, under proper allegations, judgment for the possession of the property, damages for its wrongful detention by defendant, and the costs and disbursements of the action. Defendant answered, putting in issue the allegations of the complaint, and alleging that she was the owner and entitled to retain possession of the property. Plaintiff prevailed at the trial, and had judgment awarding to her the ownership of the property and the sum of $170 damages for the use and occupancy of the premises by defendant, together with the costs and disbursements of the action, taxed at $215.11. Thereafter, and within six months from the date of the judgment, defendant paid the costs and damages so awarded and made proper demand for a second trial, as authorized by section 4430, Rev. Laws 1905. The cause was thereafter brought on for a second trial, and when called in its order on the calendar was dismissed upon plaintiff's motion. Defendant them moved the court, upon due notice, for judgment of dismissal and for the restitution and return of the amount paid by her to secure the second trial. The court denied the motion. A simple judgment of dismissal was entered, with the costs incurred on the second trial, and defendant appealed.

1. We are of opinion that the learned trial court was in error in not granting defendant's motion for a refundment of the money paid to obtain the second trial. The question, we think, is controlled by section 4431, Rev. Laws 1905, where it is provided that the judgment given on a second trial in an action in ejectment shall be annexed to the first judgment and be the final determination of the rights of the parties, and, ‘if a prior judgment has been executed, restitution shall be ordered as the last judgment may determine the rights of the parties, and the same may be enforced by execution.’ Plaintiff claims the right to retain the fruits of the first trial, though the judgment awarding them to her was necessarily vacated and annulled by the dismissal of the action. The statute referred to was intended to prevent anything of this kind. A voluntary dismissal of the action was in legal effect a concession that plaintiff had no right to recover in the action, and the situation as a matter of law is precisely the same as though defendant had succeeded on the second trial on the merits of the controversy. The statute declares that there shall be restitution when the party obtaining the second trial prevails on the final trial. This can mean but one thing, and that a restoration, not only to possession of the property, but to all damages and costs paid to obtain the second trial. If this were not so, the party obtaining the first judgment would be entitled to retain the damages recovered for the use and occupancy of the premises, when by the dismissal he in effect concedes no right to recover at all. The case would be the same if the first judgment had been satisfied by execution. If an execution had been properly issued on the judgment in the case at bar and collected by the sheriff, and defendant had then demanded and obtained a second trial and prevailed thereon, the judgment would, within the meaning of the statute, have been executed, and defendant would unquestionably be entitled to a return of the money so collected by the sheriff and also the possession of the premises. In other words, ‘restitution,’ as used in this statute, means restitution, not in part, but in whole. Fish v. Toner, 40 Minn. 211, 41 N. W. 972. The fact that defendant voluntarily paid and satisfied the judgment in no way prejudiced her right to the same relief.

2. This view of the statute is in full harmony with the rules of the common law on the subject. Plaintiff has obtained in the course of judicial...