101 Minn. 27 | Minn. | 1907
Trial of this action was had in the court below, and judgment ordered against defendants Adams to'the effect that plaintiff was the own
It is contended by defendants (1) that the action is one “for the recovery of real property” within the meaning of R. D. 1905, § 4430, and that they are entitled to a second trial as a matter of strict right; and (2) that the acceptance of the costs paid in connection with and in support of the demand for a second trial, and plaintiff’s failure to move to dismiss the demand for a period of nearly three years, estops it from now questioning the validity and effect of the same. We are unable to concur in either one of these contentions.
In Tierney v. Gondereau, 99 Minn. 421, 109 N. W. 821, the statute was held not to apply to an action to determine the boundary line between adjoining properties, though the right of possession was indirectly involved. Of course, the ultimate right of possession is involved in all actions concerning the title to real property; but the statute granting a second trial must, under the decisions, be limited to actions where judgment of ouster is sought against the party in possession. No possessory action can be maintained for vacant and unoccupied land. The suggestion of counsel for defendants that, if the statute be held inapplicable to cases where the property is vacant and unoccupied, the party in possession could vacate the land after the first trial and before demand for a second, and thus defeat the rights of the defeated party, is answered by the further suggestion that the right of either party to a second trial must be determined in the light of conditions existing at the time the action was commenced.
The cases cited in support of this proposition, namely, Deering Harvester Co. v. Donovan, 82 Minn. 162, 84 N. W. 745, 83 Am. St. 417; William Deering & Co. v. Peterson, 75 Minn. 118, 77 N. W. 568, and Damprey v. Henk, 16 Minn. 362 (405), do not support defendants’ position. In the Donovan case an attempt was made by a principal to repudiate the act of his agent, and it was held that to entitle him to do so he must return and restore the benefits received. In the Peterson' case it appeared that defendant had received and accepted benefits under the seed grain statute of 1893 when he was not entitled thereto, and the court held that he and all others claiming through or under him were estopped from denying the legality of the seed loan. In the Henk case a new trial of an action was granted “upon payment” of certain costs. The costs were paid, and accepted by the opposite party, who thereafter appealed from the order. The court held that the payment of the costs was a condition entitling- the party to a new trial, $10 of which he could not have been compelled to pay had he elected not to comply with the order, and that an acceptance
This question is disposed of adversely to appellant by Whitaker v. McClung, 14 Minn. 131 (170), where the point was directly passed upon. Plaintiff lost no rights by not sooner moving to set aside the demand for a second trial.
Order affirmed.