
    The People ex rel. Francis Gilman v. The Judge of the Wayne Circuit Court.
    
      Practice in the Circuit Court: Ejectment: Statutory new trials. A party, against whom a judgment in ejectment has been rendered, will be entitled to a new trial on the payment of the costs — under § 4589 Comp. Laws — if there has been but one previous judgment legally obtained and unreversed.
    
      Heard October 4.
    
    
      Decided October 5.
    
    
      Application for mandamus : '
    
    By Francis Gilman, to compel the Judge of the Circuit Court for the County of Wayne to vacate an order for a new trial granted by him, in a case in which one Hyacinth Riopelle was plaintiff, and the relator defendant. The action was ejectment. It had been tried twice. On the first trial Riopelle obtained a verdict and judgment. This was brought by Gilman, by writ of error, to 'this Court, where the judgment was reversed, and a new trial ordered. On the second trial verdict and judgment passed for Gilman. Riopelle then made application under the provisions of § 4589 of the Compiled Laws, on payment of costs, for an order vacating the judgment and granting a new trial. This order having been granted by the Circuit Court, Gilman now applies to this Court for a mandamus to vacate the order for a new trial.
    
      H. M. Cheever, for relator, citing Bellinger v. Martindale, 8 How. Pr., 113; Chat. Co. Bank v. White, 23 N. Y., 349.
    
    
      C. I. Walker, contra.
    
   Christiancy, J.

The intention of the statute was, we think, to give the new trial after a judgment regularly and rightfully obtained. The statute was not needed to get rid of a judgment wrongfully or illegally obtained. If it has been wrongfully obtained, as by error of law or fact, it was not a legal and valid judgment, but subject to be reversed; and being reversed, the case stands the same as if no such judgment had ever been rendered.

The new trial in question in this case is the first new trial under this section.

The new trial granted by this Court was not one of the new trials provided for by this section.

The time does not begin to run till after tbe first judgment regularly obtained and unreversed.

The mandamus must be denied.

Tbe other Justices concurred.  