
    PETER SCHONS v. VILLAGE OF KELLOGG and Others.
    
    May 15, 1895.
    Nos. 9359—(101).
    Action Involving Heal Estate — Second Trial.
    Where, in an action involving the title to real estate, recovery of possession is not sought by either party, G. S. 1894, § 5845, giving a second trial as a matter of right, does not apply.
    Appeal by plaintiff from an order of tbe district court for Wabasha county, Start, J., denying a motion for a new trial.
    Affirmed.
    
      Steel & Selover, for appellant.
    
      J. F. Me Govern and Murdoch <& Murdoch, for respondents.
    
      
       Reported in 63 N. W. 257.
    
   CANTY, J.

The plaintiff is in possession of the land in controversy, claims to be the owner thereof, and brought this action against the village of Kellogg and several of its officers to enjoin them from forcibly trespassing upon said land, and forcibly dispossessing him from the same. In their answer the defendants deny that plaintiff is the owner of the land; allege that the same is a part of a public street in said village; ask that the injunction which had then been issued in this action be dissolved, and that plaintiff take nothing by this action; but they ask for no other relief. On the trial before the court without a jury, the court found the facts to be as alleged by defendants, and ordered judgment that the action be dismissed upon- its merits, and that defendants recover their costs and disbursements. Judgment was entered accordingly. Thereafter the plaintiff demanded a second trial of the action, under G-. S. 1894, § 5845. The court below denied plaintiff’s right to a second trial, and plaintiff appeals.

No question is raised as to the appealability of the order appealed from. It will be observed that neither plaintiff nor defendants seek to recover possession of the land in controversy. This-court has often held that a second trial cannot be had as a matter of right, unless the recovery of the possessiou of real property is. sought either by the plaintiff or defendant. Knight v. Valentine, 35 Minn. 367, 29 N. W. 3; Kremer v. Chicago, M. & St. P. R. Co., 54 Minn. 157, 55 N. W. 928; Godfrey v. Valentine, 50 Minn. 284, 52 N. W. 643.

It therefore follows that plaintiff is not entitled to a second trial, and the order appealed from is affirmed. 
      
       Start, C. J., baying tried the case in the district court, took no part.
     