Wernke v. Hazen

Ray, J. This was an action to recover the possession of real property, brought by the appellees. The questions which are presented by the record are so well stated by the counsel for the appellant, that we do not feel justified in extending this opinion by an abstract of the pleadings. The first question thus stated is, whether.in an action for possession of real estate, each party'daiming as absolute owner, the defendant can file his cross-bill and secure the relief given by statute to occupying claimants; or must he wait until final judgment and bring his action as the statute provides? [432] Iii our judgment, he cannot have relief, as defendant in the action, except that as to the damage he has inflicted on the plaintiff by withholding, or using, or injuring his property, he may set off the value of the permanent improvements made on such real estate by him. The language of the statute is so plain that discussion is uncalled for. 2 Q-. & TI. 284, sec. 609. In no essential particular does it differ from the forty-eighth section of the act of 1843 (R. S. p. 800), where it was held that the proceeding is invested with the attributes of an independent action, and may, the judgment in ejectment being suffered to rest, be the subject of an appeal to the Supreme Court. Under that act, the proceeding was after judgment in ejectment, by petition or suggestion on the record. Under our present statute, after the defendant has been found not to be the rightful owner, a complaint is to be filed, and no execution can issue to put the plaintiff in possession until the decision thereunder. The remaining question argued by appellant is, whether the rights secured under the statute to occupying claimants may be assigned. As there was no judgment in this case giving damages for the detention, or use, or injury of property, and therefore no case under which such a claim could avail the assignee, wo canuot regard this as a question presented by the record. These views seeming to have controlled the action of the court below, the judgment will be affirmed, with costs.