By the Court
Ripley, Ch. J.
This action is brought under Gen. Stab., sec. 1, ch. 75, as amended by ch. 72, Laws [460]*460of 1867, plaintiff alleging ownership of N W ¼ Sec. 21, T. 105, R. 22, and that it is vacant and unoccupied land, [both which allegations were put in issue by the answer; ] that defendant claims some adverse estate or interest therein and praying that the same be declared void.
It was tried at the same time with Murphy vs. Hinds, 15 Minn 182, and as in that case, the plaintiff at the trial, after offering certain records as evidence to prove ownership in himself, stated that he had no further evidence to offer and rested his case.
The defendant thereupon moved that plaintiff be non-suited because he had failed to make out a case. The motion was denied and defendant excepted.
The patent to Wright, his covenant to convey to Hibler, and Hibler’s deed to plaintiff would enable plaintiff to maintain the action as “ having or claiming title ” to the land within said ch. 72 of Lems of 1867. Gen. Stat. eh. 43. see. 2, jp. 340.
If the book of deeds was not the proper book wherein to record said covenant, so that such record would not be notice to a subsequent purchaser, it might nevertheless be read by plaintiff in evidence. Gen. iStat. eh. 73, see. 87.
There are two cases in which eh, 75, see. 1 as amended provides that an action of this kind may be maintained.
First; when the plaintiff is in actual possession.
Second; when the land is vacant or unoccupied and no person is in actual possession. Murphy vs. Hinds, 15 Minn. 182, p. 184.
Proof that the land is actually vacant and unoccupied is, as necessary to- maintain an action brought under the last clause, as proof of actual possession is to sustain one brought under the first, and for the same reason, viz: that this action lies for one who cannot maintain ejectment, either because [461]*461he is in possession, or because, the land being vacant, there is no one in possession against whom ejectment would lie-
As a complaint would be demurrable as not stating facts sufficient to constitute a cause of action, which omitted to state, either that plaintiff was in possession, or that the land was vacant; so the plaintiff, at the trial fails to make a case, if he omits to prove whichever state of facts he has alleged to exist.
In Murphy vs. Minds, plaintiff in his complaint, counted upon his possession, and at the trial offered proof of a paper title and rested.
Defendant moved for a nonsuit, which was denied. On appeal this was held to have been error, because such.evidence did not support the allegation of possession. And the opinion goes on to say, that “ even admitting (for argument’s sake merely) that under a complaint counting upon possession, the plaintiff might be permitted to prove, either that he is in possession of the premises, or that the same are vacant and unoccupied, the proof that he has made in this instance does not establish either state of facts, and he has failed to make out a cause of action, in either of the cases contemplated by the statute.”
This covers the point raised in t,he case at bar, and it follows therefrom that the motion for a non-suit should have been granted.
The case was tried by the court and judgment was entered for plaintiff, January 11th, 1869, upon its decision that he was entitled to the relief prayed for. In its.finding of 'fact upon which said conclusion was based, the court found that plaintiff was the owner of said land but omitted to find whether or not the land was vacant.
The defendant being dissatisfied with such omission, applied at the April term, 1869, on notice to plaintiff, (the [462]*462case having been previously settled,) for an amendment of such finding so as to show whether the premises were vacant or not; whereupon it was ordered, that the same be amended by finding, as an additional fact, that the premises were not vacant or unoccupied; and as a conclusion of law, that such additional fact did not warrant any modification of the conclusion of law already found
At the general term in November, 1869, defendant moved on the pleadings, the facts and conclusions of law found by the court, and the statement of the case as settled, for a new trial, because:
1— Of errors of law occurring at the trial and excepted to.
2— Because the finding of facts by the court is not justified by the evidence.
3— Because the decision of the court upon the facts found is contrary to law.
The plaintiff moves to strike out the supplemental finding aforesaid as unauthorized and void.
We think, however, that inasmuch as the court had failed to pass upon a material issue, the ’ defendant adopted a proper mode of procuring the omission to be supplied. Bazille vs. Ullman, 2 Minn., 137; 3 Minn., 314; 14 Minn., 141. That judgment had been entered made no difference, for the conclusion of law upon which it was based was in no way modified; nor is it material that a case has been settled, for the finding was not made upon new evidence.
Moreover, there appears to have been no objection by plaintiff to the making of such amendment, and this motion comes too late, after it has been made, and a motion for a new trial, based on it, argued in the court below without objection made thereto on that ground.
The plaintiff further contends that if the supplemental [463]*463finding of fact is not to be struck oiit, it must be presumed to have been made upon sufficient evidence, and as the case as settled purports to contain all the evidence that had been taken, and discloses no evidence in support of it, it is to be presumed that it was made upon sufficient evidence subsequently taken ; that is, after the trial, and if so, leave should have been granted by the court below to amend the complaint in conformity with the facts found, or the variance should, now be disregarded.
No such amendment was asked: but the conclusive answer is, that no such presumption as he supposes can arise.
It was the duty of the court to pass upon all the material issues, and if no evidence was offered on the part of the plaintiff to support his allegation that the land was vacant it was the duty of the court, not to overlook the issue in its finding, but to find it against him; (2 Minn., 139,) nor could the court subsequently receive evidence upon such issue.
On the hearing of the motion for a new trial at said November term, 1869, plaintiff objected to the making thereof, because it was made too late, for the reason by him assigned that the time for appeal from the judgment had then expired. This was not so in point of fact under the law regulating an appeal from that judgment. Laws of 1868, ch. 83, p. 112. Laws of 1869, ch. 70, p. 84. The objection was overruled, and the motion having been heard, it was ordered that the same be denied. The appeal is taken from that order.
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By the Court
Ripley, Ch. J.
This action is brought under Gen. Stab., sec. 1, ch. 75, as amended by ch. 72, Laws [460]*460of 1867, plaintiff alleging ownership of N W ¼ Sec. 21, T. 105, R. 22, and that it is vacant and unoccupied land, [both which allegations were put in issue by the answer; ] that defendant claims some adverse estate or interest therein and praying that the same be declared void.
It was tried at the same time with Murphy vs. Hinds, 15 Minn 182, and as in that case, the plaintiff at the trial, after offering certain records as evidence to prove ownership in himself, stated that he had no further evidence to offer and rested his case.
The defendant thereupon moved that plaintiff be non-suited because he had failed to make out a case. The motion was denied and defendant excepted.
The patent to Wright, his covenant to convey to Hibler, and Hibler’s deed to plaintiff would enable plaintiff to maintain the action as “ having or claiming title ” to the land within said ch. 72 of Lems of 1867. Gen. Stat. eh. 43. see. 2, jp. 340.
If the book of deeds was not the proper book wherein to record said covenant, so that such record would not be notice to a subsequent purchaser, it might nevertheless be read by plaintiff in evidence. Gen. iStat. eh. 73, see. 87.
There are two cases in which eh, 75, see. 1 as amended provides that an action of this kind may be maintained.
First; when the plaintiff is in actual possession.
Second; when the land is vacant or unoccupied and no person is in actual possession. Murphy vs. Hinds, 15 Minn. 182, p. 184.
Proof that the land is actually vacant and unoccupied is, as necessary to- maintain an action brought under the last clause, as proof of actual possession is to sustain one brought under the first, and for the same reason, viz: that this action lies for one who cannot maintain ejectment, either because [461]*461he is in possession, or because, the land being vacant, there is no one in possession against whom ejectment would lie-
As a complaint would be demurrable as not stating facts sufficient to constitute a cause of action, which omitted to state, either that plaintiff was in possession, or that the land was vacant; so the plaintiff, at the trial fails to make a case, if he omits to prove whichever state of facts he has alleged to exist.
In Murphy vs. Minds, plaintiff in his complaint, counted upon his possession, and at the trial offered proof of a paper title and rested.
Defendant moved for a nonsuit, which was denied. On appeal this was held to have been error, because such.evidence did not support the allegation of possession. And the opinion goes on to say, that “ even admitting (for argument’s sake merely) that under a complaint counting upon possession, the plaintiff might be permitted to prove, either that he is in possession of the premises, or that the same are vacant and unoccupied, the proof that he has made in this instance does not establish either state of facts, and he has failed to make out a cause of action, in either of the cases contemplated by the statute.”
This covers the point raised in t,he case at bar, and it follows therefrom that the motion for a non-suit should have been granted.
The case was tried by the court and judgment was entered for plaintiff, January 11th, 1869, upon its decision that he was entitled to the relief prayed for. In its.finding of 'fact upon which said conclusion was based, the court found that plaintiff was the owner of said land but omitted to find whether or not the land was vacant.
The defendant being dissatisfied with such omission, applied at the April term, 1869, on notice to plaintiff, (the [462]*462case having been previously settled,) for an amendment of such finding so as to show whether the premises were vacant or not; whereupon it was ordered, that the same be amended by finding, as an additional fact, that the premises were not vacant or unoccupied; and as a conclusion of law, that such additional fact did not warrant any modification of the conclusion of law already found
At the general term in November, 1869, defendant moved on the pleadings, the facts and conclusions of law found by the court, and the statement of the case as settled, for a new trial, because:
1— Of errors of law occurring at the trial and excepted to.
2— Because the finding of facts by the court is not justified by the evidence.
3— Because the decision of the court upon the facts found is contrary to law.
The plaintiff moves to strike out the supplemental finding aforesaid as unauthorized and void.
We think, however, that inasmuch as the court had failed to pass upon a material issue, the ’ defendant adopted a proper mode of procuring the omission to be supplied. Bazille vs. Ullman, 2 Minn., 137; 3 Minn., 314; 14 Minn., 141. That judgment had been entered made no difference, for the conclusion of law upon which it was based was in no way modified; nor is it material that a case has been settled, for the finding was not made upon new evidence.
Moreover, there appears to have been no objection by plaintiff to the making of such amendment, and this motion comes too late, after it has been made, and a motion for a new trial, based on it, argued in the court below without objection made thereto on that ground.
The plaintiff further contends that if the supplemental [463]*463finding of fact is not to be struck oiit, it must be presumed to have been made upon sufficient evidence, and as the case as settled purports to contain all the evidence that had been taken, and discloses no evidence in support of it, it is to be presumed that it was made upon sufficient evidence subsequently taken ; that is, after the trial, and if so, leave should have been granted by the court below to amend the complaint in conformity with the facts found, or the variance should, now be disregarded.
No such amendment was asked: but the conclusive answer is, that no such presumption as he supposes can arise.
It was the duty of the court to pass upon all the material issues, and if no evidence was offered on the part of the plaintiff to support his allegation that the land was vacant it was the duty of the court, not to overlook the issue in its finding, but to find it against him; (2 Minn., 139,) nor could the court subsequently receive evidence upon such issue.
On the hearing of the motion for a new trial at said November term, 1869, plaintiff objected to the making thereof, because it was made too late, for the reason by him assigned that the time for appeal from the judgment had then expired. This was not so in point of fact under the law regulating an appeal from that judgment. Laws of 1868, ch. 83, p. 112. Laws of 1869, ch. 70, p. 84. The objection was overruled, and the motion having been heard, it was ordered that the same be denied. The appeal is taken from that order.
The plaintiff moves to dismiss the appeal; contending, that it is too late to move for a new trial upon a case settled after judgment entered; that defendant’s proper course was to appeal from the judgment; and he urges in .support of [464]*464this position, that inasmuch as no time is limited by statute within which a motion for a new trial must be made, if such motion be made after judgment, it may be made after the time for appeal from the judgment has elapsed; and to allow an appeal from an order denying such motion, would result,' if the order were reversed and a new trial granted by this . court, in nullifying the statute as to appeal from judgments and allow judgments to be attacked indirectly, after all direct proceedings therefor were barred.
This is true; and it is also true, as the law now stands, that a successful appeal from an order denying any motion for a new trial made after judgment, may result in vacating the judgment after the time for appeal therefrom has expired
And it is also true, that on any motion for a new trial made after judgment the district court, if it grants the motion, must also necessarily vacate the judgment, which is thus indirectly attacked.
In Groh vs. Bassett, 7 Minn. 325, the court say, that it is out of all harmony with recognized rules of practice to suppose that a motion for a new trial can be made when the time for both an appeal and writ of error have elapsed.
In this we fully agree; but it is also quite as contrary to recognized rules of practice in courts proceeding under the common law or statutes differing from ours in their provisions on the point, to allow motions for new .trials after judgment.
By the practice at commop law, judgment was not entered till the next term after trial had, and then on notice, and all motions for new trials were required to be made within the first four days of such term, which ensured their being made before judgment. 2 Bl. Com. B. 3, ch. 24, p. 387, 392. So in New York before the code, a motion for a [465]*465new trial could not be made after judgment even in cases of newly discovered evidence Jackson vs. Chase, 15 Johns. 354. Such is tbe rule now, except by leave of court. After judgment entered the only remedy is by appeal. Hastings vs. McKinley, 3 Code Rep., Jackson vs Fassitt, 9 Abb. Pr. Rep. 137.; 17 Howard Pr. Rep. 453.
So in chancery, applications for a rehearing must be made before enrollment of the decree, that is, before it becomes a record. 2 Daniell's, Ch. Pr. 1554; Clapp vs. Thaxter, 7 Gray, 384; Thompson vs. Goulding, 5 Allen 81.
The Gen. St at. ch. 66, sec. 222 would appear to require that when the case has been tried by a jury, motions for a new trial should be made before judgment
But no provison for any such stay of judgment as therein allowed, is made with respect to trials by referees or the court, upon whose report or decision judgment may be entered immediately without notice to the adverse party, and which may be filed in vacation as well as in term. Although by sec. 240 the provisions regarding trial by jury are to apply so far as in their nature applicable to trials by the courts or referees, this would not cover reports and decisions filed in vacation.
In practice, therefore, no opportunity might be offered for such motion before judgment. In Groh vs. Bassett the court held that a motion for a new trial on the ground that the evidence was not sufficient to support the decision and that it was against law, must, where the decision was made in vacation, be made as soon as possible after notice thereof and before judgment.
This rule was adopted as the one nearest in analogy to the statute rule, on motions for new trials on such grounds in trials at term, viz : that such should be made in open court immediately after verdict or other decision rendered; [466]*466which provision is now repealed. Comp. Stat. p. 561, seo. 61.
The court in that case, however, appear to overlook the contingency above adverted to, viz: that judgment may be rendered before the adverse party can possibly have notice of the decision. This, plaintiff also overlooks when he suggests that defendant should have made his motion at the earliest opportunity and before judgment. No such opportunity may have been afforded him
The New York code also allows judgment to be entered immediately on the report of the referee or decision of the court without notice to the adverse party, but it provides for a review of questions of fact or law by appeal, upon exceptions or case settled within ten days after notice in writing of the judgment and m no other manner. Voorhies code, sec. 267, 268; 3 Abb. Pr Rep. 371; 11 How. Pr. Rep. 465.
But our statutes expressly authorize reports of referees and decisions to be vacated and new trials to be granted on motion therefor. Gen. Stat. ch. 66 sec. 235.
We cannot, in the face of this express provision, say that the only remedy of the party aggrieved is by appeal from the judgment; though such a conclusion would seem logically to follow from the opinion in Ames vs. Miss. Boom Co., 7 Minn 467; and although a motion for a new trial in respect of such matters as are here in question, has been in effect held to be unnecessary, for the reason that all the parties’ rights can be secured by an appeal from the judgment rendered on a report or decision Cooper vs. Breckinridge, 11 Minn. 341. But the statute gives the right to move for a new trial upon the report of the referee or decision of the judge, and allows no opportunity to make such motion before judgment. The party aggrieved must therefore neces[467]*467sarily have the right to make it after judgment. At common law and in the chancery, the time of making it was matter of practice regulated by rule of court. It remains so unless the statute has regulated the practice. And since it has not done so in this instance, and the district court has adopted no general rule in this respect, it must be for the judge, before whom such motion is made, to decide in each instance, whether or not it is made too late, a decision which we should not review, unless an abuse of discretion appeared.
It would certainly be such an abuse to entertain a motion for a new trial, after the time for appeal from the judgment had expired; but if made prior thereto, it would seem not to be too late unless laches appeared; for an appeal from the judgment may, and will almost inevitably, involve under our practice a reversal after the time for appeal has expired, and there can be no objection to doing indirectly what can be done directly. In this case the motion was made within the year for appealing from a judgment, and at the next general term after defendant had got the record perfected.
We think it was made in time.
Order denying new trial reversed.