Lewis v. Hogan

51 Minn. 221 | Minn. | 1892

Diokinson, J.

This is an action for the recovery of real property. A first trial resulted in a judgment for the plaintiff. As permitted by the statute, the defendant availed himself of the right to have another trial. The second trial resulted in a verdict and judgment for the defendant. The plaintiff then asserted the right by statute to have still another trial. This was denied. The question here is, was the plaintiff, against whom judgment has been only once ■recovered, entitled to a third trial ? This must be answered in the negative.

Since the abolition of the fictions attending the common-law action of ejectment, and the adoption of the practice of requiring all actions to be prosecuted in the names of the real parties in interest, and upon real, and not fictitious, issues, judgments in actions for the recovery of real property have come to be conclusive as to the issues involved, as they are in other actions, except where the statute declares otherwise. Doyle v. Hallam, 21 Minn. 515. Our present statute upon the subject is comprised in 1878 G. S. ch. 75, §§ 11, 12. They provide (section 11) that “any person against whom a judgment is recovered” in an action for the recovery of real property may, as is particularly specified, demand and have “another trial;” and (section 12) that “the judgment given on a trial to be had under the last section shall be annexed to the judgment joll of the former trial, and the judgment last given shall be the final determination of the rights of the parties.” The import of these sections, when considered together, is that the party against whom judgment is rendered on the trial of such an action may have •another trial, and the judgment rendered on such other trial shall be final. The statute allows a second trial if the defeated party •seeks it, but it does not contemplate still another (a third) trial as a matter of right. The language in section 12, “the judgment last ■given shall be final,” etc., is accounted for by the fact that these words remained unchanged in the statute after the repeal of a preceding section, (1858 Pub. S. ch. 64, § 6,) which authorized the court to grant even a third trial. The history of the statute shows that these words, as they now stand in the law, are not to be construed as expressing the intention than more than two trials and judgments shall be allowed as a matter of right.

Order affirmed.

{Opinion published S3 N. W. Rep. 367.)