Buskirk, J.
The appellant brought this action in the-form prescribed by statute, for the recovery of the real estate described in the complaint, and damages for its detention. The appellee, Baker, who was defendant below, made default, the complaint was taken as confessed, the damages were assessed by the court, and judgment followed upon the the confession and finding. Appellant, as execution plaintiff soon afterward procured a writ of possession, and an. [535]*535execution for the amount of the judgment to issue. By virtue of this writ, the appellant was placed in possession of the premises. Personal property wás levied upon by virtue of the execution, but the levy was subsequently discharged upon an agreement between appellant and two persons, strangers to this record. Subsequently, the appellee, in vacation, filed with the clerk a motion for a new trial as of right, under section 601 of the code, and gave notice thereof to the appellant. At the next term of the court, a new trial was granted.
Nothing further was done during one year after the rendition of the judgment. At the next term of the court after the granting of the new trial, the appellant appeared and moved to set aside the order granting the new trial, but the motion was overruled.
The appellee, over the objection and exception of the appellant, was permitted to file an answer in the nature of a cross complaint, in which it was alleged, that he was the owner in fee of the premises; and that the deed under which .the appellant claimed title was a mortgage. There was a prayer that such deed should be decreed to be amortgage, and he entitled to redeem upon the payment of the amount which should be found to be due. To this answer a demurrer was overruled, and an exception taken. The appellant replied by way of denial, and in confession and avoidance. A trial by jury resulted in a general verdict for the appellee, and a special finding showing the appellee to be indebted to appellant in the sum of one thousand four hundred and ninety dollars, and that the sheriff’s deed to appellant was a mortgage to secure such sum.
Motions for a new trial, for a venire de novo, and in arrest of judgment, were successively made and overruled, and a judgment and decree of foreclosure were rendered, over the objection and exception of appellant, to reverse which this appeal is prosecuted.
The errors assigned call in question the action of the court in granting a new trial, in overruling the motion to [536]*536vacate and set aside the order granting a new trial, in overruling the demurrer to the answer, in striking out several paragraphs of the reply, and in overruling the motion for a new trial.
The first question presented for our decision is, whether the appellee was entitled to a new trial, as of right and without any cause shown. As we have seen, the appellee, although personally served with process, failed to make any defence, but permitted judgment to be rendered by default.
Anterior to the revision of 1852, a new trial could not be granted in any case without cause shown to the court; but in the code there is a statutory rule of practice relative alone to actions for the recovery of real estate, which says: “ The court rendering the judgment, at anytime within one year thereafter, upon the application of the party against whom judgment is rendered, his heirs or assigns or representatives, and upon the payment of all costs, and of the damages, if the court so direct, shall vacate the judgment and grant a new trial. The court shall grant but one trial, unless for good cause shown.” Sec. 601, 2 G. & H. 283.
The above quoted section is in article 29, which relates to actions “ to recover the possession of real property, and to determine conflicting claims thereto.” The article embraces sections 592 to 614 inclusive. Section 592 provides for the action to recover the possession of real property. Section 595 provides what shall be stated in the complaint. Section 596 provides, that “ the answer of the defendant shall contain a denial of each material statement or allegation in the complaint ; under which denial the defendant shall be permitted to give in evidence every defence to the action that he may have, either legal or equitable.” There are other sections relating to the trial of the action.
The question presented is, whether section 601 was •intended to be applied to a case like the present, where judgment was rendered by default. The section provides for a new trial as of right, and without cause shown. The solution of the question depends upon the true meaning of [537]*537the phrase "a new trial.” What is meant by a trial ? Section 319 of the code, 2 G. & H. 196, provides: “The trial is a judicial examination of the issues, whether of law or of fact, in an action.” Section 320 is: "Issues of law must-be tried by the court. Issues of fact must be tried by a jury, unless a jury trial is waived.”
Issues are of two kinds: first, of law; second, of fact. An issue of law arises upon a demurrer to the complaint, answer, or reply, or to some part thereof. An issue of fact arises, first, upon a material allegation in the complaint, denied by the answer; second, upon a set-off or counterclaim, presented in the answer and denied by the reply; third, upon material new matter in the reply, which shall be considered as controverted by the opposite party, without further pleading. See secs. 316, 317, 318.
Had there been a judicial examination of issues of law or' fact, at the time the new trial was granted ? We think ■clearly not. There was no demurrer to the complaint, and consequently no issue of law in reference thereto. There was no answer to the complaint, and consequently no issue of fact. The failure of the appellee to demur or answer the complaint was a confession that the complaint was true as ■to the facts stated, and sufficient in law to entitle the appellant to the relief demanded. The right of the appellant to the immediate possession of the land described was admitted, and as to that there was nothing to try. The failure to ■answer did not admit the amount of the damages claimed, and the appellant was therefore required to prove such damages. Sec. 74 of the code, 2 G. & H. 100, and the cases cited in note 1 on page 101.
In our opinion, section 60 x was intended to provide a new remedy in actions relating to real property, only where there has been a judgment rendered on a trial of the merits of the cause, and has no application to a case like the present, where judgment was rendered on default, and without an issue of law or fact. It would be a contradiction of terms and a confusion of ideas, to hold that there could be a new [538]*538trial where there had been no trial. The term “ new ” implies-that there has been a trial, and the object of the legislature-was to provide for another trial. New trials, under the code, are of two kinds: First. For cause shown to the court, as. provided by section 352, 2 G. & H. 211. The second is, without cause shown, as provided by section 601, supra.. Where the application is for cause, the motion must be made during the term at which the verdict or decision is rendered. Sec. 354, except as provided by sec. 356.
We presume that no person would contend that a motion for a new trial, for cause, would be entertained where judgment had been rendered by default. If not in that case, why-in a case like this ? A party who suffers a default is not without a remedy.
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Buskirk, J.
The appellant brought this action in the-form prescribed by statute, for the recovery of the real estate described in the complaint, and damages for its detention. The appellee, Baker, who was defendant below, made default, the complaint was taken as confessed, the damages were assessed by the court, and judgment followed upon the the confession and finding. Appellant, as execution plaintiff soon afterward procured a writ of possession, and an. [535]*535execution for the amount of the judgment to issue. By virtue of this writ, the appellant was placed in possession of the premises. Personal property wás levied upon by virtue of the execution, but the levy was subsequently discharged upon an agreement between appellant and two persons, strangers to this record. Subsequently, the appellee, in vacation, filed with the clerk a motion for a new trial as of right, under section 601 of the code, and gave notice thereof to the appellant. At the next term of the court, a new trial was granted.
Nothing further was done during one year after the rendition of the judgment. At the next term of the court after the granting of the new trial, the appellant appeared and moved to set aside the order granting the new trial, but the motion was overruled.
The appellee, over the objection and exception of the appellant, was permitted to file an answer in the nature of a cross complaint, in which it was alleged, that he was the owner in fee of the premises; and that the deed under which .the appellant claimed title was a mortgage. There was a prayer that such deed should be decreed to be amortgage, and he entitled to redeem upon the payment of the amount which should be found to be due. To this answer a demurrer was overruled, and an exception taken. The appellant replied by way of denial, and in confession and avoidance. A trial by jury resulted in a general verdict for the appellee, and a special finding showing the appellee to be indebted to appellant in the sum of one thousand four hundred and ninety dollars, and that the sheriff’s deed to appellant was a mortgage to secure such sum.
Motions for a new trial, for a venire de novo, and in arrest of judgment, were successively made and overruled, and a judgment and decree of foreclosure were rendered, over the objection and exception of appellant, to reverse which this appeal is prosecuted.
The errors assigned call in question the action of the court in granting a new trial, in overruling the motion to [536]*536vacate and set aside the order granting a new trial, in overruling the demurrer to the answer, in striking out several paragraphs of the reply, and in overruling the motion for a new trial.
The first question presented for our decision is, whether the appellee was entitled to a new trial, as of right and without any cause shown. As we have seen, the appellee, although personally served with process, failed to make any defence, but permitted judgment to be rendered by default.
Anterior to the revision of 1852, a new trial could not be granted in any case without cause shown to the court; but in the code there is a statutory rule of practice relative alone to actions for the recovery of real estate, which says: “ The court rendering the judgment, at anytime within one year thereafter, upon the application of the party against whom judgment is rendered, his heirs or assigns or representatives, and upon the payment of all costs, and of the damages, if the court so direct, shall vacate the judgment and grant a new trial. The court shall grant but one trial, unless for good cause shown.” Sec. 601, 2 G. & H. 283.
The above quoted section is in article 29, which relates to actions “ to recover the possession of real property, and to determine conflicting claims thereto.” The article embraces sections 592 to 614 inclusive. Section 592 provides for the action to recover the possession of real property. Section 595 provides what shall be stated in the complaint. Section 596 provides, that “ the answer of the defendant shall contain a denial of each material statement or allegation in the complaint ; under which denial the defendant shall be permitted to give in evidence every defence to the action that he may have, either legal or equitable.” There are other sections relating to the trial of the action.
The question presented is, whether section 601 was •intended to be applied to a case like the present, where judgment was rendered by default. The section provides for a new trial as of right, and without cause shown. The solution of the question depends upon the true meaning of [537]*537the phrase "a new trial.” What is meant by a trial ? Section 319 of the code, 2 G. & H. 196, provides: “The trial is a judicial examination of the issues, whether of law or of fact, in an action.” Section 320 is: "Issues of law must-be tried by the court. Issues of fact must be tried by a jury, unless a jury trial is waived.”
Issues are of two kinds: first, of law; second, of fact. An issue of law arises upon a demurrer to the complaint, answer, or reply, or to some part thereof. An issue of fact arises, first, upon a material allegation in the complaint, denied by the answer; second, upon a set-off or counterclaim, presented in the answer and denied by the reply; third, upon material new matter in the reply, which shall be considered as controverted by the opposite party, without further pleading. See secs. 316, 317, 318.
Had there been a judicial examination of issues of law or' fact, at the time the new trial was granted ? We think ■clearly not. There was no demurrer to the complaint, and consequently no issue of law in reference thereto. There was no answer to the complaint, and consequently no issue of fact. The failure of the appellee to demur or answer the complaint was a confession that the complaint was true as ■to the facts stated, and sufficient in law to entitle the appellant to the relief demanded. The right of the appellant to the immediate possession of the land described was admitted, and as to that there was nothing to try. The failure to ■answer did not admit the amount of the damages claimed, and the appellant was therefore required to prove such damages. Sec. 74 of the code, 2 G. & H. 100, and the cases cited in note 1 on page 101.
In our opinion, section 60 x was intended to provide a new remedy in actions relating to real property, only where there has been a judgment rendered on a trial of the merits of the cause, and has no application to a case like the present, where judgment was rendered on default, and without an issue of law or fact. It would be a contradiction of terms and a confusion of ideas, to hold that there could be a new [538]*538trial where there had been no trial. The term “ new ” implies-that there has been a trial, and the object of the legislature-was to provide for another trial. New trials, under the code, are of two kinds: First. For cause shown to the court, as. provided by section 352, 2 G. & H. 211. The second is, without cause shown, as provided by section 601, supra.. Where the application is for cause, the motion must be made during the term at which the verdict or decision is rendered. Sec. 354, except as provided by sec. 356.
We presume that no person would contend that a motion for a new trial, for cause, would be entertained where judgment had been rendered by default. If not in that case, why-in a case like this ? A party who suffers a default is not without a remedy. The remedy is given by section 99 of the code as amended. See 3 Ind. Stat. 373. By that section, a party may be relieved from “a judgment taken against him, through his mistake, inadvertence, surprise or excusable neglect.” A party who has suffered a judgment to be-rendered against him by default has no standing in court, except for two purposes. The one is to have the default set-aside, and the other is to appear and contest the amount of damages. Briggs v. Sneghan, 45 Ind. 14.
In our opinion, there had been no trial of this cause within-the meaning of section 601, at the time the court granted a new trial. It is quite certain that the granting of a new trial did' not set aside the default which had been rendered against the appellee, but it remained in full force, and precluded the appellee from making any defence to the action until it was set aside. See the cases collected in note 1, 3 Ind. Stat.. 373-
The judgment by default was rendered on the 17th day of February, 1871. The proceedings which took place in this case subsequent to the granting of the new trial terminated on the 28th day of February, 1874, more than three years, after the default was taken. Up to that time the judgment by default had not been set aside. The relief under section 99, as amended, must be granted within two years. It has. [539]*539not been within the power of the court since the 17th day of February, 1873, to set aside such default. The only effect of granting a new trial is to get rid of the final judgment against the party in whose favor it is granted. To illustrate: Suppose the appellee had, instead of suffering a default, appeared to the action and filed an answer, and had been beaten upon a trial, and he had taken a new trial, as of right, the issues would not have been changed. The case would have stood as it did when the trial commenced under the issues formed. Or suppose the court had, upon the application of the appellee, set aside the default, and permitted him to plead to the action, and upon the issue thus formed a trial had taken place, and j udgment had been rendered against appellee, can it be doubted that he would have been entitled toa new trial as of right, for the plain and obvious reason that there had been but one trial of the cause ?
In all the adjudged cases in this court, where a new trial has been granted as of right, there had been issue and trial upon the merits. The purpose of the statute was to give a party who had been beaten in a trial upon the merits,, in an action to recover real property, another trial on the merits.
We are very clearly of the opinion that the court below possessed no power to set aside the judgment rendered in favor of the appellant, and grant a new trial; and it necessarily results, that all the proceedings subsequentto the rendition of. the original judgment are illegal and void.
The judgment is reversed, with costs; and the cause is remanded, with directions to the court below so set aside all the orders,judgments, and decrees rendered subsequentto the rendition of the judgment of the appellant, and to render final judgment for the appellant.
Downey, J.,- having been of counsel, was absent.