Clairview Park Improvement Co. of Gross Pointe, Ltd. v. Wayne Circuit Judge

Stone, J. This court has repeatedly held that under the provisions of section 10981, 3 Comp. Laws, the party against whom judgment shall be rendered, upon payment of costs, may have a new trial as of course in the action of ejectment. Van Den Brooks v. Correon, 48 Mich. 283 (12 N. W. 206); Keyser v. Sutherland, 59 Mich. 455-465 (26 N. W. 865). In the last-cited case, it was said that this was a right of which no court could debar the party. See, also, Dennison v. Genesee Circuit Judge, 37 Mich. 281-285. In Rupiper v. Calloway, 105 Wis. 4 (80 N. W. 916), under a statute similar to ours, it was held that a plaintiff in ejectment, who had judgment for only part of the land sued for, and for costs, was entitled to a second trial as a party against whom judgment was rendered, although he had no costs to pay as a condition of the new trial. Should we hold, in view of what we decided in Clairview Park Improvement Co. v. Railway, 164 Mich. 74 (129 N. W. 353, 33 L. R. A. [N. S.] 250), that the relator is estopped and precluded from obtaining the statutory new trial ? We there said: “Either party to a judgment in ejectment may of right demand a statutory new trial.” We held in that case that the plaintiff had by its conduct waived its right to a writ of error; but does it follow that it may not have the statutory new trial ? We think not. It was held, in Bray v. Doheny, 39 Minn. 355 (40 N. W. 262), that an attorney of a party might, by a stipulation made in the case, waive a new trial. In Roherts v. Baumgarten, 126 N. Y. 336 (27 N. E. 470), an unsuccessful party in an action of ejectment was held to have wavied his right to a new trial under the statute by having stipulated, in order to perfect and maintain an appeal (which he had lost by lapse of time), that, in case the judgment of the appellate court should be against him on the whole controversy, judgment absolute should be entered against him. [174] In this case there has been no express waiver of the right to take a new trial; and we do not think that any should be implied from what took place in Clairview Park Improvement Co. v. Railway, supra. The new trial, under the statute, should be granted as a matter of right. The writ of mandamus should issue, but without costs. Steere, McAlvay, Ostrander, and Bird, JJ., concurred with Stone, J.