#### Newland, Appellant, vs. Morris and another, Respondents.

*September*2

*September 23, 1902.*

*Ejectment: New trial: Equitable counterclaim: Undertaking: Justification of sxireties: Payment of costs: Interest.*

1. Interposition oí an,equitable counterclaim in an action of ejectment — as for specific performance of a contract to convey tlie land — does not make a new or separate action in wliicli the right to a new trial under sec. 3092, Stats. 1898, does not exist. That statute secures to the defeated party in ejectment a right to a second trial of all the issues disposed of hy the judgment, whether they were legal or equitable.

'2. The fact that the undertaking for payment of costs and damages under sec. 3092, Stats. 1898, was conditioned upon the granting of a new trial upon all the issues involved, did not lessen the obligation to pay when the new trial was in fact granted, and did not render the undertaking insufficient.

5. Justification of the sureties on such undertaking in conformity with sec. 2704, Stats. 1898, is sufficient.

4. “All costs recovered” by the judgment, payment of which is, by sec. 3092, Stats. 1898, made a condition of the granting of a new trial thereunder, means the face of the costs only, without interest.

Appeal from an order of the circuit court for Outagamie ■county: JohN GoodlaNp, Circuit Judge.

*Affirmed.*

This is an action of ejectment. The complaint is in the ■usual form. The defendant *Archibald*answered by general ■denial. The defendant *Alice*answered by general denial, and *208set up an equitable counterclaim for the specific performance of an oral contract with one Fielding for the lands described in the complaint; that plaintiff knew of such agreement when he received title; and that he obtained title by fraud and undue influence, with intent to defraud the defendant. She asked judgment that she be declared to be the owner of the premises, and that the plaintiff be adjudged to execute a deed. Both parties claimed title through Fielding.

The issue on the counterclaim was tried by the court at the November i;erm, 1899. The court found for plaintiff. At the April term, 1901, the ejectment issue was tried by the court, a jury having been waived, and was determined in plaintiff’s favor. Judgment was entered April 23, 1901, dismissing defendant’s counterclaim and adjudging title in plaintiff. Costs were taxed and included in the judgment, amounting to $121. J5. On June 23, 1901, defendant paid that sum into court. On April 9, 1902, defendant filed an undertaking, and made an *ex parte*application for a new trial under sec. 3092. On April 11th the court made an order vacating the former judgment, and granting a new trial upon all the issues made by the pleadings, including the issue made by the counterclaim. The plaintiff filed due exceptions, and brings this appeal.

For the appellant there was a brief by *Bouclc &*Hilton,. and oral argument by *Gate Bouclc.'*

For the respondents there was a brief by *A. M. Spencer,*attorney, and Pierce, *Lehr &*Moeshes, of counsel, and oral argument by *Mr. Spencer.*

BARDEEN, J.

The plaintiff urges the following objections to the validity of the order appealed from: (1) That the court had no jurisdiction to grant a new trial upon the issue made by the counterclaim. (2) The defendant did not give the undertaking required by law. (3) The defendant failed to pay interest on the costs recovered by the judgment.

*2091. The theory of plaintiff is that, when the defendant *Alice Morris*interposed an equitable counterclaim, it had the effect to make two separate actions in one suit, — the one an action of ejectment, in -which a. new trial as of course, under sec. 3092, Stats. 1898, might be had; and the other an action for specific performance of a contract, in which no such right exists. It is true that the right to a new trial as of course, under sec. 3092, exists only in actions of ejectment as defined in sec. 3073, and that such right does not exist in equitable actions, though they might not only determine the possession, but the whole title, to the premises in controversy. *Maurer v.*Stiner, 82 Wis. 99, 51 N. W. 1101. The weakness of the plaintiff’s contention arises from the assumption that we have here two separate actions. Sec. 3073 says that actions for the recovery of specific real property or of the possession thereof, with damages for the withholding thereof, are styled “actions of ejectment.” Sec. 3078 provides that the defendant, in his answer, may set up any matter as defense which would have heretofore formed an equitable defense, in which case the answer must contain a demand for such judgment as he claims. Such right exists by virtue of the statute only, and, to make it available to the defendant, so that he may secure an affirmative judgment, it is neces-saiy that the matters constituting the equitable defense should be set up as a counterclaim. *Dobbs v.*Kellogg, 53 Wis. 448, 10 N. W. 623. The obvious purpose of the statute is to enable the parties to settle all controversies regarding the title and possession of the land in controversy in one action. Sec. 3088 makes the judgment rendered in any such action conclusive as to the title established therein upon the party against whom it is rendered. In determining whether such judgment is adverse to a party, the court is not confined to words used in the judgment, but may inspect the pleadings; and the judgment is to be considered as broad as the issues raised thereby, and as disposing of all the matters upon which *210the court passed or might have passed in reaching the final result. *Rupiper v. Calloway,*105 Wis. 4, 80 N. W. 916. Sec. 3092 says that: “The court in which any such judgment has been rendered . . . shall, upon application of the party against whom the same was rendered, . . . vacate the judgment and grant a new trial upon condition that all costs recovered thereby ... be paid and that the applicant execute and file an undertaking,” etc. It will be observed that this section contains no words of limitation or restriction, except such as relate to the payment of costs and the giving of the undertaking. The mandate to the trial court that it shall “vacate the judgment and grant a new trial” is plain, clear, and unequivocal. It must be construed to mean just what it reads. It is the judgment that disposes of all the matters on which the court on the trial passed or might have passed in reaching its final conclusion, as disclosed by the pleadings permissible in such cases, that is to be set aside. The new trial to be granted is a new trial upon the issues disposed of by the judgment. There is no ambiguity, obscurity, or uncertainty in the language used. In such case interpretation is not allowed. *Ogden v. Glidden,*9 Wis. 46; *Boland v. Gillett,*44 Wis.*329; State ex rel. Banks v. McClure,*91 Wis. 313, 64 N. W. 992. The mistake made by the learned counsel for the plaintiff is in assuming that the statute must be limited to cases in which a legal defense only has been made. No such limitation can be read into the statute except by main strength. In *Cheesebrough v. Parker,*25 Kan. 566, the action being ejectment, the defendants set up an equitable defense, upon which judgment was rendered in their favor. The trial court denied an application for a second trial. The judgment was reversed in the supreme1 court, the court saying that it was a grand mistake to suppose that by setting up an equitable defense in an answer the right of the plaintiff to a second trial under the statute could be abridged. We cite this case in answer to the suggestion of plaintiff’s counsel that, if *Mrs.*
      *211
      *Morris*bad prevailed on ber counterclaim, plaintiff would not have been entitled to a second trial. We are content to take tbe statute as it reads, and bold that it secures to tbe defeated party a right to a second trial, whether tbe issues be legal or equitable.

2. We find no difficulty with tbe undertaking given by defendant. It complies with substantial certainty with tbe requirements of sec. 3092. Tbe condition recited, that, if a new trial is granted on all tbe issues, tbe parties undertaking to pay, etc., does not lessen tbe obligation to pay when tbe new trial is in fact granted.1 Tbe undertaking is in form tbe same as was considered when this case was here before (113 Wis. 394, 89 N. W. 179), except that tbe justification of tbe .sureties has been corrected. Such justification is in conformity with tbe requirements of sec. 2704, and must be held sufficient.

3. Tbe judgment was entered April 23, 1901, tbe costs being taxed at $121.75. On June 23d thereafter defendants deposited that sum with tbe clerk of tbe circuit court, without interest. The question proposed by plaintiff is whether tbe judgment for costs must be paid with accrued interest. A majority of tbe court are of tbe opinion that where tbe statute says such new trial shall be granted “on condition that all ■costs recovered” by tbe judgment shall be paid it means tbe face of tbe costs, and does not include interest which may accrue from date of rendition of tbe-judgment to time of payment. I confess my inability to agree with this conclusion, and will content myself with a dissent from this proposition.

*By the Court.*— Tbe order is affirmed.