Northrup & Chick v. Romary

6 Kan. 240

Opinion

The opinion of the court was delivered by

Safford, J.:

This was an action brought by parties in possession of real estate, for the purpose of determining an adverse estate or interest therein, and under the authority of section 569 of the code of 1862; (§ 594, civil code of 1868, p. 747.) The cause was submitted to the court below, and judgment rendered against the plaintiffs, now defendants in error. Thereupon said plaintiffs demanded a new trial of the issues in said cause, and without any showing therefor, claiming a new trial as a matter of right under the statute. (Sec. 574, code 1862, and § 599, code 1868.) Such new trial was granted, and the defendants below, Northrup & Chick, duly excepted.

Practice. SecotthT!íodt; construed. We are of the opinion that the court erred in the granting of a new trial, and for the reason that the sections last referred to are not applicable to a ' case °f this kind. If a new trial was desired in this case, and grounds existed therefor, a motion showing such grounds should have been made as in ordinary cases under the code; §§306 to 310. But the point made in this case has already been decided by this court in the case of Swartzel v. Rogers, 3 Kas., 374, and to such case reference may be had.

*

The order of the court below granting a new trial must be reversed.

All the Justices concurring.

[* Note. — That part of the opinion of the court in Swartzel v. Rogers, (page 879, 8 Kas.,) adapted to the code of 1868, is as follows:

u Article 24 of the code, §§ 594 to 600, provides for two classes of actions ‘ concerning real propertyone, when suit is brought by a person in possession against a person who claims an interest adverse to him, for the purpose of determining such interest; the other, where suit is brought to recover the possession of lands. The latter is, by the code, (§595,) denominated ‘an action for the recovery of real property.’ No other action concerning real property is so designated by the code; and § 599, which authorizes another trial, upon the demand of tfye defeated party, applies to this class alone. The proceeding in the court below was not * an, action for the recovery of real property; and consequently not within the meaning of that section.”

— Sec. 594, above cited, G-en. Stat., p, 747, seems to be out of place; or rather, it ought not to be grouped with the other sections (595 to 600 inclusive) of said Article 24. The actions authorized by said §594 are equitable, as, to “ remove a cloud,” or to “quiet title.” Nash’s Pleadings, ch. 39, p. 653, and cases cited; also, Stridde v. Saroni, 21 Wis., 173; Grimmer v. Sumner, id., 179: In Wisconsin the plaintiff must hold the legal title, as was formerly the case in Ohio.’ Not so in Kansas. But the plaintiff, to maintain an action under § 594, must be in actual possession of the property in controversy, either by himself or tenant; and the object of the action is to “ determine” the adverse interest or estate in such property which the defendant “ claims” to the injury or prejudice of the plaintiff’s right or title. Sections 595 to 600 relate solely to actions of “ ejectment,” called therein actions “ for the recovery of real propertyand not one of those sections has any reference or application to said §'594, nor to actions brought under said § 594-REPORTER.]