This court has always construed the statute relating to a second trial of actions (.1878 G. S. ch. 75, § 11) as giving such right only in actions which, whatever their form, are in substance actions in ejectment; that is, for the recovery of possession. Had the statute intended to give it in all actions where the title to real estate is involved and is determined, it would have used different language. No doubt an action to determine adverse claims may become an action in substance similar to ejectment if the plaintiff be in possession, and the defendant demand, on the allegations of his answer, judgment for possession.
This action is merely one to determine adverse claims. Neither party asks judgment for recovery of possession. Neither.could, on the allegations of his pleading, ask such a judgment, — the plaintiff, because he alleges himself to be in possession; the defendant, because he alleges the premises to be vacant and'unoccupied.
Order affirmed.