
    William J. Godfrey vs. William J. Valentine.
    Argued June 7, 1892.
    Decided June 27, 1892.
    Second. Trial Given by Statute.
    1878 G. S. ch. 75, § 11, giving the right to a second trial in actions to recover real estate, does not apply to actions to determine adverse claims, except where judgment for recovery of possession is demanded.
    Appeal by defendant, William J. Valentine, from an order of the District Court of Eamsey County, Egan, J„ made October 20, 1891, ■striking from the files and vacating his demand for a second trial under 1878 G. S. ch. 75, § 11.
    After the decision of this case, 45 Minn. 502, a remittitur was issued, and plaintiff, William J. Godfrey, had judgment entered in the trial court May 2, 1891. It adjudged that he had an estate in fee simple in lots nine (9) and sixteen (16) of Hoyt’s Outlots in St. Paul, free and discharged of all right, title, and claim of defendant. It also enjoined defendant from setting up, or claiming title to, interest in, or lien upon the real estate, or any part thereof. It also adjudged that he recover of defendant his costs and disbursements taxed at $78.
    Defendant paid the costs and filed in the trial court on September 16, 1891, his demand for another trial under the statute, and served notice thereof. Plaintiff moved to strike the demand from the files. The motion was granted, and defendant appealed to this court.
    
      Kitchel, Cohen é Shaw, and Berry hill & Davidson, for appellant. They cited Eastman v. Linn, 20 Minn. 433, (Gil. 387;) Doyle v. Hallan, 21 Minn. 515; Schmitt v. Schmitt, 32 Minn. 130; Wilson v. 
      
      Fairchild, 45 Minn. 203; City of Winona v. Huff, 11 Minn. 119, (Gil. 70;) Bazille 'v. Murray, 40 Minn. 48.
    An application for reargument was denied July 7, 1892.
    (Opinion published 52 XT. W. Rep. 643.)
    
      Flandrau, Squires é Cutcheon, for respondent. They cited Knight v. Valentine, 35 Minn. 367; Somerville v. Donaldson, 26 Minn. 75; Hoiues v. Gillett, 10 Minn. 397, (Gil. 316;) Davidson v. Lamprey, 16 Minn. 405, (Gil. 402;) Ferguson v. Kumler, 25 Minn. 188; City of St. Paul v. Chicago, Mil. & St. P. By. Co., 49 Minn. 88; Hatch v. Coddington, 32 Minn. 92.
   Gileillan, C. J.

This court has always construed the statute relating to a second trial of actions (.1878 G. S. ch. 75, § 11) as giving such right only in actions which, whatever their form, are in substance actions in ejectment; that is, for the recovery of possession. Had the statute intended to give it in all actions where the title to real estate is involved and is determined, it would have used different language. No doubt an action to determine adverse claims may become an action in substance similar to ejectment if the plaintiff be in possession, and the defendant demand, on the allegations of his answer, judgment for possession.

This action is merely one to determine adverse claims. Neither party asks judgment for recovery of possession. Neither.could, on the allegations of his pleading, ask such a judgment, — the plaintiff, because he alleges himself to be in possession; the defendant, because he alleges the premises to be vacant and'unoccupied.

Order affirmed.  