105 Ind. 420 | Ind. | 1886
On the 6th day of February, 1867, the party through whom the appellant claims title, bought the real estate in controversy at a tax sale made by the treasurer of the
This action was instituted in November, 1881, and is in form, as indicated by the frame of the complaint, an action of a dual nature, for the complaint seeks to quiet title, orj if this relief can not be obtained, to enforce a lien for taxes. There is, however, an admission of record which affirmatively shows that there was no question of title or possession involved in the cause. There were two trials, both resulting in a finding against the appellant; the finding on the first trial was vacated by the granting of a new trial as a matter of right.
The court erred in granting the new trial as of right. "Where it affirmatively and decisively appears that an action is to enforce a lien, a new trial as of right can not be granted. Jenkins v. Corwin, 55 Ind. 21; Butler University v. Conard, 94 Ind. 353.
Where a new trial as of right is erroneously granted, it is proper to remand the cause for judgment upon the first finding or verdict. Sharpe v. O’Brien, 39 Ind. 501; Gann v. Worman, 69 Ind. 548. This was the legal effect of the judgment of the general term of the superior court in the present instance, and there is, therefore, no cause for a reversal.
Judgment affirmed.