
    Montgomery v. Hays.
    Real Estate, Action to Recover.—New Trial.—Costs.—When a party against whom judgment has been rendered in an action for the recovery of the possession of real estate moves for the vacation of the judgment and a new trial as a matter of right, the costs must be paid or tendered at or before the time of making the motion. The court cannot grant such new trial conditioned on the subsequent payment of costs within a time fixed.
    
      Same.—Dismissal of Action.—When a new trial has been erroneously granted in such case on the application of the defendant, the plaintiff has a right to dismiss the action.
    
      From the Grant Circuit Court.
    
      J. Brownlee, H. Brownlee, A. Steele, and R. T. St. John, for appellant.
    
      I. Van Devanter, J. F. McDowell, C. H. Test, and D. V. Burns, for appellee.
   Pettit, J.

The appellant sued the appellee, to recover possession of real estate and damages for the use and occupation thereof. There was an answer of general denial, trial by the court, and a finding and judgment in these words : “ And the court, after hearing all the evidence, argument of counsel, and mature deliberation had, finds for the plaintiff. It is therefore considered and adjudged by the court, that said plaintiff recover of and from said defendant the costs herein, taxed at-dollars and-cents.” The defendant moved the court in these words: “ Comes now the defendant in this cause and moves the court for a new-trial as of right upon payment of costs in this cause.” And then follows this entry : " And the court sustains said motion and grants a new trial herein upon the payment by said defendant of the costs of this action within twenty days.”

This order was erroneous, as the costs were not paid or tendered at the time of making the motion for a new trial. Starry v. Winning, 7 Ind. 311; Crews v. Ross, post, p. -481.

The defendant withdrew his answer of general denial, and the cause was continued with leave to defendant to file “ additional answer.” No other or additional answer was filed, and the cause was again continued; and at the next term the following motion was made: “ Plaintiff moves the court to dismiss said cause, for the following reasons : That the judgment rendered in said cause in favor of the plaintiff has not been vacated, nor has there been any new trial granted, and more than one year has elapsed since said judgment.” This motion was overruled, but should have been sustained, as it was a motion by the plaintiff to dismiss her cause, as she had a clear right to .do. There was a second trial, which resulted in a judgment for the defendant, appellee here.

As there was no judgment in favor of the plaintiff for the possession of the land, we may presume that the defendant is still in possession, and that another suit may be brought; but in that event we earnestly request that a better record shall be made, before the case comes here again.

The judgment in favor of the defendant on the second trial is reversed, at the costs of the appellee, with instruction to the court below to allow the plaintiff to dismiss her cause.  