Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-30
Joseph Ferguson, Respo.0ent, as. Joseph Kum1e,.
appellant.
OPINION

OPINION.
Under the provisions of section IL, chapter
"a, general statutes, this action is brought to
recover possession of certain lands purchased
by plaintiff at an execution sale, no redemp-
ton having been made, and the time for re-
demption having expired, the action was COM
menced before Justice of the peace by whom
Ga question of title having arisen,) it was GER
titled to the district court, under section 3d.
chapter 65, general statutes. A trial in the dis
trict court resulted in judgment for
defendant. Before the expiration of
six months the plaintiff paid costs
and damages, and demanded another trial
under section 5, chap Is, gen. STAT, as amended
by sec. 2, chap. 62, laws 1867. The section
reads as follows, viz: ANY person against
whom Judgment is recovered in an action for
the recovery of real property, may, within six
months after written notice of such Judgment,
upon payment CT all costs and damages recov-
cred thereby, demand another trial by notice in
writing to the adverse party or his attorney in
the action, and thereupon the action shall be
returced, and may be brought to trial by either
party is this an action for the recovery of
real property within the meaning of this
section? From general view of the provi-
sions OF chap. 70, relating to such actions
it is quite apparent that the phrase, ''Ac-
ton for the recovery of real property as
there used was intended to refer to an action
in the nature of the common law ejectment
although in form an action for the recovery of
possession of real property. and hence spoken of
as a possessory remedy, came to be the most
usual action for the trial of title to real prop
erty.
Tyler on Ejectment, 33.
The statute of forcible entries and unlawful
detalners, On. S4., gen. STAT, under which the
present action was brought, was not designed
to provide mode OF trying questions of title
OF real estate. 1t was designed to afford a sum-
mary remedy for the recovery of possession
where there was no real controversy as to title
This is apparent from the general nature of its
provisions and notably from the fact that the
proceedings under it were to be instituted be-
fore a justice of the peace-a magis.
t t .,a having no jurisdiction where
Ne !ertheless under section II a practice has
grown up OF making use of these proceedings
In cases IN which 1t may turn out that the
title to real estate IS involved and if it does SO
turn out then the case is certified to the dis
trict court Gas this was) under section IS, oh.
TO, Gen: Stat. This practice has become so well
established (see Goeven VS.. SCHNEIDER, 8 Mimi
1857. Merriam VS.. Baker. 8 Mimi 4O) and is
so convenient and useful that it boots not nov,
10 enquire whether 1t was technically correct
or not. The result is that where proceedings
are instituted under the forcibe entry and I'M
lawful detainer act for the recovery of possess
sion OF real property they may become an ac-
ton for the trial of title to such property and
therefore in effect and for all practical inter-
ests and purposes an action for the recovery
OF real property in the nature of the common
law ejectment. When the proceedings do be.
come such action there is no good reason why
they should not fall, as in our opinion they do,
within the provisions of section S, CHI. rs, Gen
Stat, as amended, which allow any person
against whom a Judgment is recovered in an ac-
ton for the recovery of real property second
trial upon compliance with prescribed condi-
tions. From this conclusion it follows that
the second trial in the case at bar was proper
ly permitted. The plaintiff introduced in evil
dence transcript OF . judgment docket entry