#### Walker and others, Respondents, vs. Rockman, Appellant.

*February 3*

February *24, 1914.*

*Ejectment: Judgment: "When is on the merits: New trial: Notice of motion: Undertaking: Approval: Service of copy: Justification of sureties.*

1. In ejectment, defendant set up title in himself and demanded judgment that the title and right of possession were in him. The cause was tried hy the court. At the close of plaintiffs’ testimony defendant moved for judgment dismissing the complaint because plaintiffs had failed to establish title in themselves. The court granted the motion and found as a conclusion of law that defendant was entitled to judgment dismissing the action upon the merits, and judgment was entered accordingly in that form. *Held,*that the judgment was one on the merits and was proper. *Comstock v. Boyle,*134 Wis. 613, distinguished.

2. Plaintiffs in ejectment being entitled to a new trial as a matter of right under see. 3092, Stats., it was immaterial that the notice of motion therefor was not served on defendant.

3. An order for a new trial in ejectment, granted under sec. 3092, Stats., becomes effective upon payment of the statutory costs and the filing of an undertaking which in form complies with the statute and the order.

4. The statute does not, in such case, require the court to approve the undertaking. *Dickinson v. Smith,*139 Wis. 1, distinguished.

5. Nor is the provision in sec. 2702, Stats., relating to the service of a certified copy of the undertaking, applicable to actions of ejectment.

6. The sureties in the undertaking are, under sec. 3092, Stats., required to justify only in case objection is made to their sufficiency. Defendant has the right to make such objection and *tp*have proceedings stayed until the sureties justify; and if they fail to do so and plaintiff fails to furnish a new and sufficient undertaking, defendant is entitled to have the order vacating the judgment set aside as a matter of course.

Appeal from a judgment of tbe circuit court for Barron county: EeaNK A. Ross, Circuit Judge.

*Affirmed.*

This is an action of ejectment in which the plaintiffs claim title and right of possession. The answer denied the alie-*191Rations of tbe complaint and set up title in tbe defendant under certain tax deeds and demanded judgment decreeing that tbe title and right of possession were in tbe defendant. At tbe close of plaintiffs’ testimony tbe defendant' moved for judgment dismissing tbe complaint because plaintiffs bad failed to establish title in themselves. Tbe court granted tbe motion, and as a conclusion of law found that tbe defendant was entitled to judgment dismissing the action upon tbe merits and that tbe defendant recover costs. A judgment was accordingly entered on November 11, 1912, which adjudged that' tbe action be dismissed upon tbe merits. On December 5, 1912, one of the attorneys for tbe plaintiffs filed an affidavit reciting that tbe costs bad been paid and that plaintiffs applied for a new trial in tbe action as allowed by law. Thereafter on December 6, 1912, tbe court entered an order vacating tbe judgment and granting a new trial upon condition that tbe plaintiffs execute and file an undertaking with sufficient sureties in tbe sum of $200, to tbe effect that they would pay all costs and damages which might be finally awarded to tbe other party in tbe action, such sureties to justify their responsibility as required by law. This order was entered without notice to the defendant or bis attorney. It appears by inference that an undertaking was filed, but through some oversight' tbe same was not returned with tbe record to this court. The case was noticed for trial at tbe March, 1913, term of tbe circuit court for Barron county, and thereupon tbe defendant moved for an order vacating and setting aside tbe order granting a new trial, tbe defendant appearing specially for tbe purpose of making such motion. Tbe grounds on which it was sought to set aside tbe order were as follows: (1) Tbe court bad no power to make tbe same, and tbe order was erroneous because tbe plaintiffs were not entitled to a new trial. (2) No notice of tbe application for a new trial was served on defendant or bis attorney. (3) Tbe order as granted was inoperative as an order vacating *192the judgment and granting a new trial. (4) Neither the order nor a copy thereof was served on the defendant or his attorney. (5) The undertaking authorized by the order was not served upon the defendant' or his attorney, nor was the undertaking nor the responsibility of the sureties approved, by the court or judge. (6) The application and affidavit upon which the order was based were insufficient to authorize a.ny order affecting the judgment.

The defendant’s motion was denied, and thereupon the defendant refused to take any part in the trial of the action. The plaintiffs submitted their proofs to the court and upon them the court' made findings of fact and conclusions of law upon which judgment was entered in favor of the plaintiffs and against the defendant, adjudging the plaintiffs toNe the owners of and entitled to the property in controversy. The defendant appeals from this judgment.

For the appellant the cause was submitted on the brief of *W. F. Bailey.*

For the respondents there was a brief by *O. G. & A. E. Goe,*and oral argument by *A. E. Goe.*

BaeNes, J.

1. The judgment first entered was in form one on the merits, and we think it is quite clear that it was so in fact. *Amory v. Amory,*26 Wis. 152; *Williams v. Hayes,*68 Wis. 248, 32 N. W. 44; *Nat. F. & P. Works v. Oconto City W. S. Co.*105 Wis. 48, 58, 81 N. W. 125; *Durant v. Essex Co. 7*Wall. 107; *Swan L. & C. Co. v.*Frank, 148 U. S. 603, 13 Sup. Ct. 691. The contentions that under secs. 3084, 3086, and 3092 a judgment of nonsuit only could have been granted in this case is not correct. Sec. 3084 deals with the form of verdicts in ejectment actions and does not affect the question, because a jury was waived and the case was tried by the court. Sec. 3086 provides that the judgment shall be entered in accordance with the verdict *or decision of the court.*The judgment was entered in conformity with *193tbe court’s decision. There is nothing that can be read out of sec. 3092 prohibiting the entry of a judgment other than one of nonsuit where the plaintiff fails to establish title in an ejectment action. Nor has this court' decided that the judgment here rendered was improper. On the contrary, it has decided that such a judgment may be entered. *Menominee River L. Co. v.*Seidl, 149 Wis. 316, 135 N. W. 854. The case of *Comstock v.*Boyle, 134 Wis. 613, 114 N. W. 1110, cited by the appellant as holding that the only proper judgment to render in the case before us was one of nonsuit, does not so hold. There the answer was a general denial. Defendant did not, as here, set up title in himself and ask for a dismissal of the complaint on the merits. The plaintiff failed to appear at the trial and defendant proceeded to prove his title and try the case on the merit's, and took a judgment decreeing that the plaintiff had no right, title, or interest in the premises in dispute. The case was disposed of in this court on the theory that plaintiff had the right to insist that in his absence from the trial the relief granted should not be greater than that asked for in the answer, and that' plaintiff by his nonappearanee in.effect submitted to a voluntary non-suit. The court does not' decide that, under such an answer as was here interposed, where defendant specifically sets forth his title and asks for a dismissal of the complaint on the merits, he could not have taken judgment in accordance with the prayer of the answer, upon plaintiff failing to prove his cause of action. The defendant was entitled to a judgment on the merits where the plaintiff failed to prove title, as well as he would be had he proved a paramount title in himself or established his right by adverse possession, provided the court saw fit to grant such a judgment.

2. The plaintiffs were entitled to a new trial as a matter of right, hence it was immaterial whether a notice of motion therefor was served or not. The statute did not require the court to approve of the undertaking. What is said in refer-*194en.ce to the approval of an -undertaking by the court in such a case in *Dickinson v. Smith,*139 Wis. 1, 120 N. W. 406, must be read in connection with the facts in that case where the court did approve of the undertaking.

There is no doubt that under sec. 3092, read in connection with the statutes relating to bail on arrest therein referred to, the defendant had the right to except to the sufficiency of the sureties and to have them justify in the manner provided for in sec. 2705, Stats. We do not think that the provision of sec. 2702 relating to the service of a certified copy of the undertaking in cases of bail on.arrest is applicable to actions of ejectment. The defendant, however, could not be deprived of this right to question the sufficiency of the sureties on the undertaking. In the present instance he did not take the proper steps to avail himself of it. His motion to vacate the order granting the new trial was made before the second trial of the action, and he then knew of the undertaking. His proper procedure, if he was not satisfied with the sureties, was to make his objections to them and ask that they be required to justify in the manner provided by law. In the meantime he would be entitled to an order staying proceedings in the action until the sureties had established their competency, and to an order vacating the former order if they failed to do so and other good and sufficient sureties were not substituted. Appellant insists that the order granting the new trial did not become effective until he had notice thereof and the undertaking was served upon him and he elected not .to object to the sufficiency of the sureties or the court found they were sufficient if objection was made. There is no particular reason why an order for a new trial granted under sec. 3092 should not become effective when the statutory costs are paid and an undertaking filed which in form complies with the statute and the order granting the new trial. The statute provides that the new trial shall be granted on condition that certain costs be paid “and that the applicant' execute and *195file an undertaking, with sufficient sureties, in such sum as the court shall direct, to the effect that he will pay all costs and damages which may he finally awarded the other party.” The order here made followed the statute, and we must assume that the undertaking followed the order, because no objection was made to its form at any stage of the proceeding. The sentence.following the above quotation reads: “The sureties shall justify their responsibility in the same manner as bail on arrest.” Such sureties are required to justify only in case objection is made to their sufficiency. Such objection may never be made. We think it is a fair construction of the statute to hold that the order granting the new trial became effective when the costs were paid and the undertaking was filed, and such is the effect of the decision in *Dickinson v. Smith,*139 Wis. 1, 120 N. W. 406. The defendant might except to the sureties, and if they failed to justify and plaintiffs failed to furnish a new and sufficient undertaking, the defendant would be entitled to have the order vacating the judgment set aside as a matter of course.

*By the Gourt.*— Judgment affirmed.