#### Wakeley and another vs. Delaplaine and another.

After judgment for the plaintiff in ejectment, and after he was put in possession qf the premises by the sheriff, the defendant took an order for a new trial under the statute, and the cause was afterwards dismissed by a stipulation of the parties, entered by the clerk in the rule book, which stated also that the costs were paid. *Held,*that the stipulation would have authorized a judgment for the defendant, with an order that he be put in possession.

But no such judgment having been entered, this court would not interfere with an order which was made by the court below, diree *ting*the plaintiff to deliver the possession to the defendnnt.

APPEAL from tbe Circuit Court for *Dane*County.

Ejectment. Yerdict and judgment for plaintiffs. On tbe tbe 6tb of April, 1860, they were put iu possession by tbe sheriff. The next day, on tbe application of tbe defendants, tbe court made an order for a new trial. On tbe 19th of October, 1861, tbe plaintiffs and tbe attorney for tbe defendant signed a stipulation, which was filed and entered by tbe clerk in tbe rule book on tbe same day, stating that tbe case was dismissed and tbe costs paid. Tbe plaintiffs paid tbe *555defendants’ attorney a fee of twenty-five dollars, and also paid tbe disbursements in tbe action. Tbe plaintiffs refused to restore tbe premises on demand, tbe defendants moved tbe court for an order to compel them to do so, which tbe court, on tbe 11th of November, 1861 refused. A motion to set aside tbe discontinuance and place tbe cause on tbe calendar for trial having been subsequently made, tbe court, on tbe 2d of January, 1862, overruled tbe motion, but set aside its order of November 11th, 1861, and ordered tbe plaintiffs to restore tbe possession to tbe defendants. From this order tbe plaintiffs appealed.

*Walcehys*& Wias, for appellants :

Such an order as tbe one appealed from is an anomaly in tbe law. Two parties are in controversy about property. Tbe controversy has been decided in favor of tbe plaintiffs, and they take possession of tbe property under tbe execution of tbe court. Tbe defendants get tbe privilege of anew trial. At this stage tbe whole controversy is settled, and tbe plaintiffs pay tbe costs. The court thereupon takes away from tbe successful party the property, tbe fruits of bis litigation, procured by verdict and judgment, and confirmed by settlement and purchase, and by a mere order requires tbe possession to be delivered over to tbe parties whose title has been conclusively disposed of by such judgment. There is no law for tbe transfer of property from one man to another by an order of court. It abolishes the right of a trial by jury in a common law case. In fact there is no trial at all, nor any process of law. Our statute (E. S., ch. 132, sec. 25,) defines a judgment to be tbe final determination of tbe rights of the parties in tbe action. Tbe chapter on executions (cb. 134,) provides that tbe party in whose favor a judgment has been rendered, may enforce it by execution ; and in tbe enumeration of tbe different kinds of executions, is one for tbe possession of real estate. But here we have a proceeding called an order, that, in addition to answering tbe purposes of a trial and verdict, determines and enforces tbe final rights of parties, and is, therefore, a judgment and execution. The order could be made out of court by a commissioner. E. S., cb. 140, sec. 29, et seq. Tbe scope given *556to an or<^er ^is case> *s evidently not contemplated by tbe statute, wbiob provides tbe remedy of trial, judgment an(j executiorL t0 reach tbe case of tbe final determination of a conteo^ersy. and tbe enforcing of that determination. Had tbe stipulation not been made, tbe defendants could not bave got á re-delivery of tbe property without a trial, and a verdict and judgment in their favor, when an execution could be issued. B. S., chap, 141, sec. 24. Tbe same section also provides that tbe plaintiff’s possession shall not in any way be affected by tbe vacating of tbe judgment and granting of a new trial, that is, by that proceeding tbe possession shall not go back to tbe defendant, but be must abide tbe determination of tbe case on another trial. Tbe court refused to set aside tbe discontinuance and made no objection to tbe stipulation. Tbe court must, therefore, bave considered that a discontinuance of an action of ejectment after a new trial is allowed tbe defendant, is equal to a judgment and execution in tbe defendant’s favor, and that too, although settled by the parties and tbe written evidence of tbe settlement put on file and entered according to rule of court. *Bale 26. At*most it is optional with tbe defendants to bave a new trial, and in this case they chose not to bave one. Although refusing to set aside tbe stipulation, yet tbe court, by a mere order, restored possession of tbe lots to tbe defendants, a result which would not bave followed from setting aside tbe stipulation and vacating tbe discontinuance in a case of tbe grossest fraud— a result which could be attained only by another trial, and a judgment contrary to that first rendered. 2. The order made by tbe court on tbe 11th of November, 1861, after a bearing upon tbe merits of a motion for that purpose, refused to re-instate tbe defendants in possession of tbe premises. This order, unless appealed from or set aside for irregularity, determined finally tbe rights of tbe parties. It was a bar to a decision of tbe same subject matter on another motion. 3. Tbe only motion before tbe court on tbe 2d of January, 1862, was that tbe discontinuance be vacated and tbe cause set down for trial. No other relief was asked either specifically or generally. Tbe order asked for and that made, required to be opposed by entirely different kinds *557of proof and argument. Tbe appellants were taken by surprise. *Hungerford vs.*Gushing, 8 Wis., 820.

October 11.

*Julius T.*Glarh, for respondent,

to the point that the court had power to make the order appealed from, cited *Smith vs. Robinson,*1 Mon., 14; *Thomas vs. Newton,*Peters’ C. 0. P., 444; 7 Halstead, 821.

*By the*Court,

Cole, J.

Considering the attitude of this case when the stipulation of October 19th, 1861, was entered into, we think no other or different effect can be given that stipulation than to say it remitted the parties to the same position and rights enjoyed by them when the litigation commenced. It appears to us that this is the direct legal effect and consequence of a discontinuance of the suit by the plaintiffs. It is true they had been put into possession of the premises in dispute, but how ? By commencing their action of ejectment, having a trial, obtaining a judgment, and issuing an execution for' the delivery of the possession of the premises to them. The respondents then made an application for a new trial under the statute, which was granted by the court. And while the cause was in this position — the right to the property and its possession being undetermined— the plaintiffs dismissed their suit. They now claim the right to retain and hold the property, the possession of which they obtained through a suit which they have-voluntarily abandoned. Suppose they had instituted a suit for the possession of personal property, and after having got the property into their possession by means of the process of the court, should then dismiss their suit; could they still retain the property thus acquired ? It is quite obvious to my mind that they could not. And it is equally clear that they cannot retain and hold real estate the possession of which they obtained under precisely similar circumstances.

We think the stipulation would have authorized a judgment in favor of the respondents, with an order giving them possession. And we are inclined to the opinion that this would have been the better course to have purs'ued. But the. same result is' substantially reached by the order which *558WaS entere(^’ an<^ we are not disposed, to interfere with it because some other practice might have been adopted.

wag ga^ ^be execution of this stipulation was in every way a fair, open transaction, as much so as the dismissal of any cause in open court. It is not necessary to controvert this statement. We do not set aside the stipulation on account of any fraud or deception practiced in obtaining it. We let the stipulation stand, and give to it the effect which we think it must have upon the suit and the rights of the parties. It simply places them in the same position they occupied before the litigation commenced. Such, we think, must be the effect and legal consequence of discontinuing the suit. If the situation of the parties, or their relations to the property, had been changed by the litigation, they were to be reinstated in the rights they occupied and enjoyed pri- or to the commencement of the action.

It is said this order is anomalous — that a controversy about property had been decided in favor of the appellants, when the court interferes and takes away by this order, from the successful party, the fruits of the litigation. But the error in this position is in assuming that the controversy has been decided in favor of the appellants, when in truth and fact it was still undetermined and unsettled, and they saw fit to discontinue the suit rather than prosecute it further. And ■ all the court attempted to do was, to give full effect to a stipulation voluntarily entered into between the parties.

It follows from these views that the order of the circuit court must be affirmed, with costs.