34 Kan. 585 | Kan. | 1886
The opinion of the court was delivered by
Two cases of the same title are now presented to this court upon the same briefs and the same argument. The first case was an action of unlawful detainer, commenced originally by William Buettinger against Margaret Hurley and G. M. Hurley before a justice of the peace, to recover the possession of a certain piece of land, which action was taken on appeal to the district court, where it was tried before the court and a jury, and judgment rendered in favor of the defendants and against the plaintiff for costs. The other case was an action in the nature of ejectment, brought originally in the district court, by the same plaintiff against the same defendants, for the recovery of the same piece of land, which case was also tried before the court and a jury, and judgment rendered in favor of the defendants and against the plaintiff for costs. Both of the foregoing judgments the plain
In the second case only one question is presented, which is as follows: "While an action of unlawful detainer to recover the possession of a certain piece of land is pending in the district court on an appeal from a justice of the peace, can the plaintiff in such action commence a second action in the district court in the nature of ejectment to recover the same land from the same parties? The court below decided this question in the negative, and held that the pendency of the action of unlawful detainer abated the action in the nature of ejectment. Now while the action of unlawful detainer was in fact pending at the time when the action in ejectment was commenced, yet it was not pending at the time of the trial of the ejectment action. It had been disposed of several months prior to that time; but it does not seem that the court below considered this fact as of any importance. There ai’e decisions, however, to the contrary: Chamberlain v. Eckert, 2 Biss. 124; Hixon v. Schooley, 2 Dutcher, 461; Swart v. Borst, 17 How. Pr. 69; O’Beirne v. Lloyd, 1 Sweeney, 19.
It therefore follows from what we have said in this opinion, that the judgment of the court below in the unlawful-detainer action must be affirmed, and the judgment in the ejectment action must be reversed, and a new trial granted.