Blackford v. Loveridge

The opinion of the court was delivered by Valentine, J.: This was an action to compel the specific performance of a contract for the sale and conveyance of real estate, and to quiet title and possession. The action was tried by the court without the intervention of a jury. The findings and judgment were for the plaintiff below, defendant in [102] error. One of the defendants below, who is now the plaintiff in error, demanded a new trial in the following words to-wit: “And now conies the said defendant, 'William Blackford, and demands a new trial in the above entitled cause.” The court refused to grant the new trial, and the said defendant duly excepted. This is the only ruling of the court below complained of in this court. And this ruling was correct. There is only one kind of action under our statutes in which a party is entitled to a second trial as a matter of right or simply demanding it. And that is “an action for the recovery of real property.” (Gen. Stat., 748, sec. 599.) This is not that kind of action. The plaintiff in this action does not seek to recover the property, for he was already in the possession thereof. All that he seeks is to get a good title thereto. This question has already been decided in this court in the cases of Nothrup v. Romary, 6 Kas., 240, and Swartzel v. Rogers, 3 Kas., 374. The judgment is affirmed. All the Justices concurring.