The provision in the statute of Illinois, Rev.Stats. c. 45,
§ 35, that
"at and time within one year after a judgment, either upon
default or verdict, in the action of ejectment, the party against
whom it is rendered, his heirs or assigns, upon the payment of all
costs recovered therein, shall be entitled to have the judgment
vacated, and a new trial granted in the cause"
applies to such a judgment rendered in a circuit court of the
United States sitting within that state on a mandate from this
Court in a case commenced in a court of the Illinois and removed
thence to the Circuit Court of the United States.
Ex Parte Dubuque & Pacific
Railroad, 1 Wall. 69, distinguished from this
case.
The Court stated the case as follows:
The defendant in error, Charles H. Mitchell, as plaintiff,
commenced an action of ejectment in a state court of Illinois, to
recover certain described premises situated in that state, against
Jabez G. Smale and others, which action was afterwards, on
sufficient grounds, removed to the Circuit Court of the United
States for the Northern District of Illinois. Issue being joined in
the action, it was tried by the court without a jury, and upon the
facts found, judgment was rendered on February
Page 143 U. S. 100
1, 1886, in favor of the plaintiff for a portion of the demanded
premises and in favor of the defendants for the residue. Judgment
being entered thereon, the case was brought to this Court on a writ
of error, and on May 11, 1891, the judgment was reversed, and the
cause remanded to the circuit court with directions to enter
judgment for the plaintiff in conformity with the opinion of this
Court.
140 U. S. 140 U.S.
406. According to that opinion, the plaintiff was entitled to
recover a greater quantity of land than that described in the
judgment reversed. The declaration contained two counts, each
describing a portion of the demanded premises, and the opinion
directed that a general judgment be entered for the plaintiff for
the property described in both counts. The judgment was reversed
accordingly, and the cause remanded, with instructions as above
mentioned. The mandate of the court issued thereon followed the
judgment, and was filed in the court below, June 8, 1891, and that
court, in obedience thereto, on the 12th of June following, entered
a judgment in favor of the plaintiff for the premises described,
and ordered a writ of possession to be issued.
On the following day, June 13, 1891, the defendants moved the
court to vacate the judgment thus entered, and to grant them a new
trial under the statute of Illinois, all costs of the action having
been previously paid, but the court, after hearing argument
thereon, denied the motion, and to its ruling the defendants
excepted.
To review this ruling the defendants, in September, 1891, sued
out a writ of error from the Circuit Court of Appeals for the
Seventh Circuit, returnable in October following, and assigned as
error the refusal of the circuit court to vacate the judgment
entered on June 12, 1891, and grant a new trial under the statutes
of Illinois, the costs having been paid, and the motion made in
open court within one year from the rendition of the judgment, and
the defendants never having had a new trial in the cause, as
provided for by that statute
The case being brought, upon this writ of error, before the
circuit court of appeals, was heard on October 5, 1891, and the
question arose as to the power of the court below to set
Page 143 U. S. 101
aside and vacate the judgment entered on June 12, 1891, pursuant
to the mandate and opinion of the Supreme Court of the United
States, and to grant the defendants a new trial as of course and
simply upon the payment of costs, as provided in the statutes of
Illinois relating to the practice in actions of ejectment. The
court being advised, it was ordered that the question be certified
to the Supreme Court of the United States pursuant to the sixth
section of the act establishing circuit courts of appeals. 26 Stat.
828, c. 517.
On the hearing in the circuit court of appeals, the circuit
judge did not sit, but the court which made the order was held by
the circuit justice and the district judge for the Northern
District of Illinois, who had been assigned to sit as a member of
that court. Upon this certificate, the case is now before this
Court for hearing.
The provisions of the law of Illinois relating to ejectment are
contained in sections 34 and 35 of chapter 45 of the Revised
Statutes of that state. They are as follows:
"§ 34. Every judgment in the action of ejectment shall be
conclusive, as to the title established in such action, upon the
party against whom the same is rendered, and against all parties
claiming from, through, or under such party, by title accruing
after the commencement of such action, subject to the exceptions
hereinafter named."
"§ 35. At any time within one year after a judgment, either
upon default or verdict in the action of ejectment, the party
against whom it is rendered, his heirs or assigns, upon the payment
of all costs recovered therein, shall be entitled to have the
judgment vacated, and a new trial granted in the cause. If the
costs are paid and the motion therefor is filed in vacation, upon
notice thereof being given to the adverse party or his agent or
attorney, or the officer having any writ issued upon such judgment,
all further proceedings shall be stayed till otherwise ordered by
the court. The court, upon subsequent application, made within one
year after the rendering of the second judgment in said cause, if
satisfied that justice will thereby be promoted and the rights of
the parties more satisfactorily ascertained and established, may
vacate the judgment
Page 143 U. S. 102
and grant another new trial, but not more than two new trials
shall be granted to the same party under this section. "
Page 143 U. S. 104
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court.
The contention of the plaintiffs in error, the defendants below,
is that the mandate of the supreme court was fully obeyed when, in
pursuance thereof, judgment was entered in the circuit court, and
that they have the same right after the entry of that judgment to a
new trial, according to the
Page 143 U. S. 105
provisions of the statute of Illinois, which they would have had
if the circuit court had on the trial, in the first instance,
rendered such judgment. On the other hand, the contention of the
defendant in error, the plaintiff below, is that the judgment
entered by direction of the Supreme Court of the United States is
final, and that the right to a second trial given by the statutes
of Illinois to the losing party in ejectment does not apply where
the judgment against such party is entered by direction of that
court.
It is insisted at the outset that the statute of Illinois
confers a right to a new trial in ejectment only when the judgment
is rendered upon default or verdict, and does not apply to cases
where it is entered upon the mandate of an appellate court, the
latter judgment not being within its language of intent. We are
unable to agree in this respect with counsel. By a judgment upon a
verdict, the statute evidently intended to embrace all cases where
the decision upon which the judgment was entered had been given
upon contestation, as distinguished from one upon default, and the
reason of the law is as applicable to all judgments in such cases
as to those entered upon verdicts of a jury.
Chamberlin v.
McCarty, 63 Ill. 262.
By the common law, the action of ejectment was purely one of
possession, and, as it proceeded upon a fictitious demise between
fictitious parties, its determination decided nothing beyond the
right of the plaintiff at the date of the alleged demise. A new
action upon the allegation of a different demise might immediately
be instituted. It was only after repeated verdicts in such cases in
favor of the plaintiff that the real claimant could apply to a
court of equity to quiet the possession and put an end to the
fruitless litigation respecting the property. A judgment in
ejectment in an action was consequently not a bar to a second
action for the same premises.
The law of Illinois changes this rule of the common law, and
makes a judgment in the action of ejectment conclusive as to the
title established in such action upon the party against whom it is
rendered, and parties claiming under him by title arising after the
commencement of the action, subject to
Page 143 U. S. 106
certain exceptions named. Those exceptions provide in two cases
for a second trial of the action. One is after the first trial and
judgment; the party against whom the judgment has been rendered, or
his heirs or assigns, is entitled to have the judgment set aside
and a new trial granted within one year from the date of the
judgment, upon the payment of all costs in the action. The new
trial in such case is a matter of right, upon the mere application
of the party. The other is after the second trial and judgment;
then a new trial may be granted, upon the application of the losing
party, if the court is satisfied that justice would be thereby
promoted and the rights of the parties be more satisfactorily
ascertained and established. But only two trials can be granted to
the same party.
This absolute right of a party against whom a judgment in
ejectment has been rendered in such cases to a second trial, upon
his application and payment of costs in the action, is esteemed in
Illinois to be a valuable one. The statute which authorizes it is
there regarded as conferring a substantial right, in that it
increases the security of holders of real property that, in case
their title is brought into litigation, it will be more fully
examined and satisfactorily ascertained and established than by
confining the parties to a single trial, as in other controversies,
except where another trial is ordered for cause. In the courts of
that state, this right is secured in all cases of ejectment. As it
is a valuable one, there would seem to be every reason why it
should be enjoyed when the action was commenced in a state court
and for good cause removed to a court of the United States, there
being nothing in the practice of the latter court or in the laws of
Congress which prevents or impedes its enjoyment. If there existed
any such objection in the practice of the federal courts or in any
law of Congress as prevents the trial of equitable defenses to an
action at law which are allowed in some state courts, the second
trial in ejectment, simply upon the application of the party and
the payment of the costs, might properly be refused; but there
exists, as stated, no such objection. It is not the purpose of the
statutes of the United States which authorize the removal of causes
from a state court to a federal court to deprive
Page 143 U. S. 107
either party of any substantial right, but to secure to the
parties all such rights which could be claimed in the state courts
when capable of enforcement under the settled federal practice.
The duty of the federal courts to follow the practice of the
state courts in cases like the present one, where the law of the
state allows a new trial in actions of ejectment without showing
cause, is recognized by this Court in
Equator Co. v. Hall,
106 U. S. 86. That
was an action in the circuit court of the United States against a
mining company to recover possession of a silver mine in Colorado.
The case was, by agreement of parties, submitted to the judge of
the court, who found for the defendant and rendered judgment in his
favor. Thereupon the plaintiffs paid the costs of the action up to
that time, and under the provisions of a section of the Code of
Civil Procedure of that state moved for and obtained a new trial
without showing any cause. At a subsequent term, the case was again
tried, and the jury returned a verdict for the plaintiffs, on which
judgment was entered. The defendant then, without showing cause,
moved for a new trial, which was claimed to be a matter of right
under the same section of the code under which the previous new
trial had been granted. The judges of the court were divided in
opinion on this motion, and certified the question to this Court.
The section of the Code of Colorado under which the motion was made
was as follows:
"Whenever judgment shall be rendered against either party under
the provisions of this chapter, it shall be lawful for the party
against whom such judgment is rendered, his heirs or assigns, at
any time before the first day of the next succeeding term, to pay
all costs recovered thereby, and, upon application of the party
against whom the same was rendered, his heirs or assigns, the court
shall vacate such judgment and grant a new trial in such case; but
neither party shall have but one new trial in any case as of right,
without showing cause; and after such judgment is vacated, the
cause shall stand for trial the same as though it had never been
tried. "
Page 143 U. S. 108
In disposing of the question, this Court referred to the
fictions in the action of ejectment at common law and to the
inconclusiveness of the results of such actions, and observed that
this form of action had been abolished in some of the states, and
that in abolishing it with its accompanying evils, and in
substituting an action between the real parties, plaintiff and
defendant, it was found necessary to provide a rule on the subject
of new trials in actions concerning the titles of land. While these
provisions, said the court, were not the same in all states, it was
believed that almost all of them had made provision for one or more
new trials as a matter of right. The court added:
"We are of opinion that, when an action of ejectment is tried in
a circuit court of the United States according to the statutory
mode of proceeding, that court is governed by the provisions
concerning new trials, as it is by the other provisions of the
state statute. There is no reason why the federal court should
disregard one of the rules by which the state legislature has
guarded the transfer of the possession and title to real estate
within its jurisdiction.
Miles v. Caldwell, 2 Wall.
35."
That decision goes beyond the requirement of this case, for that
action was commenced in a federal court, while here it was begun in
a state court and subsequently removed to the circuit court of the
United States. It is only necessary to hold that in this case the
same right to a second trial can be claimed and enforced as if the
action had never been thus removed.
Against this view the defendant in error cite section 701 of the
Revised Statutes of the United States, which prescribes the power
of the Supreme Court in reviewing the judgment of inferior courts
as follows:
"The Supreme Court may affirm, modify, or reverse any judgment,
decree, or order of a circuit court, or district court acting as a
circuit court, or of a district court in prize causes, lawfully
brought before it for review, or may direct such judgment decree,
or order to be rendered, or such further proceedings to be had by
the inferior court, as the justice of the case may require. The
Supreme Court shall not issue execution in
Page 143 U. S. 109
a cause removed before it from such courts, but shall send a
special mandate to the inferior court to award execution
thereupon."
They contend that the supreme court having rendered its decision
and remanded the case to the court below with directions to enter
the appropriate judgment, the judgment thus entered becomes, in
substance and effect, the judgment not of the court to which it was
thus remanded, but of the supreme court, and that it is not within
the power of the lower court to change its results or directions in
any respect. Undoubtedly, in ordinary cases, a new trial cannot be
granted by the court below except for good cause and in the
exercise of its sound judgment, and it is not within its power, in
entering the judgment of the supreme court, to award a new trial,
and it only remains to carry the judgment into execution.
But this rule cannot apply to an action of ejectment, where the
party is entitled by the law of the state in which the action arose
to a new trial without showing cause, and in regard to which the
trial court possesses no discretion. The judgment entered in an
action of ejectment in such case, by direction of the supreme
court, stands subject to the same control by the lower court as if
thus rendered in the first instance.
The defendants in error also cite in support of their position
the case of
Ex Parte Dubuque & Pacific
Railroad, 1 Wall. 69. At first sight, this decision
would seem to be an authority for their position, but upon
examination it appears that the new trial there depended upon the
discretion of the court, and that there was not, as mistakenly
stated, any statute at that time in Iowa which gave the party a
right to a new trial as a matter of course. It appears from the
record in that case that after the mandate had gone down and
judgment had been entered in obedience to it, affidavits were
presented and a motion made for a new trial, which was granted by
the court, and that subsequently a mandate was issued by this Court
commanding the court below to vacate the order. That case
therefore, as correctly stated by counsel, falls within the class
where the litigation was ended with the first trial, and its
Page 143 U. S. 110
decision does not apply to those cases of ejectment where more
than one trial is directly allowed by statute.
Our conclusion is that
The plaintiffs in error were entitled to a new trial upon
their application in the circuit court and payment of costs,
without showing other cause than that a judgment was entered
against them within the year. This conclusion will be certified to
the circuit court of appeals, upon which that court will proceed to
render the proper judgment in the case pending before it, and it is
so ordered.
