#### Cunningham vs. The City of Milwaukee.

The provision for the granting of a new trial in an action of ejectment, contained in sec. 20, chap. 141, R. S. 1858, was designed to secure a new trial *of the same came*before the same court in which the action is first tried, unless the place of trial thereof is legally changed. The plaintiff in such action, against whom judgment has been rendered upon the first trial, cannot, after obtaining a new trial under that section, discontinue the cause, and commence a new action in the same or a different court.

APPEAL from tbe Circuit Court for *Milwaultee*County.

Tbe opinion of tbis court states as nrucb of tbe case as is necessary for a full understanding of tbe decision. Tbe circuit court gave judgment for tbe plaintiff, *Cunningham.*

*J. La Due,*city attorney, and *Palmer & Stark,*for tbe appellant,

contended, among other things, that tbe plaintiff could not discontinue bis suit in tbe district court, after taking a new trial under sec. 33, chap. 106, R. S. 1849, (sec. 20, chap. 141, 1858) and then commence another action in another court, citing *Fraser vs. Weller,*6 McLean, 11.

*M Mariner,*for tbe respondent,

contended that tbe record of tbe district court in tbe case of *Cunningham vs. The City of Milwaukee*was no bar to tbis suit, because it showed that tbe judgment obtained on tbe first trial bad been vacated, and that on tbe second trial tbe plaintiff submitted to a non-suit ; that be was as much entitled to become voluntarily nonsuited on tbe new trial as on the first (Graham’s Practice, 517-18); and that tbis court would not reverse tbe decision of tbe district court in granting such nonsuit.

January 2.

*By the Court,*

Dixon, C. J.

Tbis is an action of ejectment, commenced by tbe respondent, *Cunningham,*in tbe circuit court of Milwaukee county, to recover possession of a certain piece of land, situated within tbe city of Milwaukee, and occupied by it as a public highway. In addition to tbe general denial, tbe answer sets forth two special matters of defense, one of which is, that tbe respondent heretofore instituted an action of ejectment against tbe appellant, for tbe same premises, in tbe district court of tbe United States for tbe district of Wisconsin, in which a trial upon tbe merits *121was bad, and a verdict and judgment given for tbe appellant. Tbe judgment thus rendered in tbe district court is upon as a bar to tbe present action. Upon tbe trial, tbe averments of tbe answer in tbis respect were fully sustained 1 *J .*by tbe proof. But it likewise appeared from tbe transcript of tbe proceedings in tbe district court, that tbe respondent, within one year after tbe rendition of tbe judgment in that court, paid tbe costs and damages thereby recovered, and upon a regular application procured from tbe court an order vacating tbe judgment and granting a new trial, under tbe provisions of tbe statute now found as section 20, chapter 141, B. S.; and that subsequently be took judgment of non-suit in tbe action. Tbe circuit judge ruled out tbe record of tbe proceedings in tbe district court as immaterial. Tbe question which arises upon tbis branch of tbe case is as to tbe correctness of tbis ruling. Being of opinion that it was erroneous, and that its correct determination puts an end to tbe present controversy, we shall discuss no other.

Tbe forms of proceeding in tbe action of ejectment are, with us, controlled entirely by statutory provision. Tbe privilege of a second trial, upon payment of costs and damages and without cause shown, when tbe action has once been fairly tried upon its merits and judgment perfected, is special and statutory. In giving effect to it, we must take into consideration tbe purposes for which it was granted; tbe intention of tbe legislature in conferring it. It is very evident to us, and we think it must be to every one, that tbe design was to give to tbe defeated party tbe benefit of another trial before tbe court in which tbe cause is pending. It is granted purely as a matter of favor, and without reference to tbe merits of tbe cause of action or defense of tbe party asking it, as they appeared at tbe previous bearing, or to any technical irregularities which may have intervened. Tbe only condition imposed is that tbe party applying pay to tbe successful party tbe costs and damages which are justly and legally due to him. When tbis is done, in tbe language of tbe statute, “ a new trial in such cause ” is granted him. Tbis language plainly defines tbe meaning and extent of tbe privilege. It is a new trial of that identical cause *122which is given, and which must, of course, be had before the court in which the suit is then pending, unless the place of trial is otherwise legally changed. The vacating the judgment and ordering the new trial are one act or proceeding. The former is done in order to make way for the latter. A new trial of the same cause is the proceeding authorized, and it can be had only before the court then having jurisdiction, or some other to which the suit may lawfully be transferred. If, therefore, the party obtaining it desires a new trial, he must comply with the requirements of the statute. He must proceed to it in the same action and before the same court that granted it. He cannot, because he happens to be plaintiff, be permitted afterwards to abandon the suit altogether, and commence a new one before the same or another tribunal. This would be allowing him to turn a privilege intended for his benefit into an instrument of the greatest oppression and injustice to the opposite party. It would be an utter perversion of the liberality of the legislature, and a fraud upon the statute. Eor if he can do so once, he may any number of times, and thus his statutory privilege may become the means of most vexatious and harassing litigation to the defendant. The latter might always be in the anomalous and most annoying situation of ever recovering in a fair contest on the merits, and yet never obtaining a final judgment in his favor. It would be giving to a plaintiff this further and most unfair advantage, that whilst he could have a new trial as a matter of course, so often as he saw fit to bring a fresh action, it could not be claimed by the defendant more than once. The legislature certainly never could have intended any such results.

The preceding section declares that the judgment in every such action rendered upon verdict, shall be conclusive as to the title established therein, upon the party against whom it is rendered. By applying under the statute, the party impliedly admits that the former judgment was valid and regular, and that, but for the statute, it could not have been vacated or reversed. But for the statutory provision in his favor, it would still be final and a bar to another suit; and having set it aside without cause, he is bound to pursue the *123special remedy pointed out by tbe statute. He cannot claim it in part to bis advantage and then abandon it to tbe of tbe other party. *Fraser vs. Weller,*6 McLean, 11.

It is unnecessary for us to clecide whether tbe first judgment in tbe district court is to be considered as still in existence, or what remedy, if any, tbe plaintiff may have in that court. We are satisfied be has no right to prosecute bis action in tbe courts of tbe state, and that is sufficient for us.

Having commenced bis action and taken bis new trial under tbe statute in that court, be must abide by such relief as may there be obtained.

Tbe judgment of tbe circuit court is reversed, and tbe cause remanded for further proceedings in accordance with this opinion.