55 F. 267 | U.S. Circuit Court for the District of Kansas | 1893
This is an action of ejectment. The action was originally brought in the district court for the county of Atchison, and a trial upon the merits was had in that court. On the 28th day of January, 1888, a judgment was rendered in favor of the defendant Ghalliss. Thereupon the plaintiff and certain other defendants (under the statute of Kansas) caused a notice to be entered on the journal that they applied for an order setting aside and vacating the said judgment, and granting another trial of the case. The statute under which these proceedings were had Is in the following language:
“Id an action for the recovery of real property, the party against whom judgment is rendered may, at any time (luring the term at which the judgment is rendered, demand another trial by notice ©n the journal, and thereupon the judgment shall be vacated, and the action shall stand for trial at the next term.” Section 4702, Gen. St. Kan.
Section 4703 provides?:
“No further trial shall be had in such action, unless for good cause shown a new trial be granted, or the judgment reversed, as in other actions.”
After obtaining the new trial upon demand, as provided by the statute, the cause was continued until the next term of the court, and upon being called for trial at the next term,' to wit, on the 9th day of September, 1889, the plaintiff declined to proceed to trial, but dismissed Ms action, and thereafter, on December 3, 1890, brought Ms action in this court. These proceedings were all made to appear by the answer of the defendant Ohallis in this action, a transcript of the proceedings in the state court being incorporated therein, and upon the pleadings he asks for judgment.
The state district court for AtcMson county had jurisdiction of the cause. One trial was had in that court; a new trial granted, not for error, but as of right, under a statute giving a second trial
“It would be a' fraud upon the law. For aught that appears, the first judgment could not have been set aside except under the provisions of the statute, and, this remedy having been claimed under the statute, the party is bound to go on with another trial. Having set aside the bar to another suit, be docs so under an obligation to pursue the special remedy under the statute. He cannot claim the remedy in part to bis advantage, and then abandon it, to the injury of the other party.”
The first judgment was not only a judgment against him for the property, but for costs as well. This he procured to be set aside under the statute, thus relieving himself of the obligation to pay the costs, and he cannot, under such circumstances, be permitted to require the défendants to incur cost and expenses in another tribunal The case will be dismissed, at the plaintiff’s cost.