instead of ordering judgment for defendant notwithstanding the verdict.

FRANK H. GAHRE v. HELEN G. BERRY.

Second Trial in Ejectment.

January 26, 1900.

Nos. 11,852—(196).

G. S. 1894, § 5845, providing for a second trial as a matter of right in actions for the recovery of real property, is a remedial statute, and must be liberally construed. To determine the right to such second trial, the court will look to the substance of the cause of action determined, and not merely to the form or manner in which it is presented.

Trial Court Reversed.

Rule applied, and held, that the trial court erred in setting aside the defendant's demand for a second trial.

Appeal by defendant from an order of the district court for Hennepin county, Brooks, J., setting aside a demand for a second trial. Reversed.

Chas. G. Laybourn, for appellant.

M. H. Boutelle and N. H. Chase, for respondent.

PER CURIAM.

The sole question here involved is whether the defendant was entitled as a matter of right to a second trial of this action, pursuant to G. S. 1894, § 5845, providing for a second trial in an action for the recovery of real property.

The complaint alleged that the plaintiff was the owner in fee and in possession of certain land, describing it, and that the defendant claimed some estate or interest therein adverse to plaintiff, but that she had no title to or interest therein, whatever. The relief prayed for, so far as here material, was that it be adjudged that the plaintiff was the owner of the land, and entitled to the possession thereof, that the defendant had no title to or interest therein, and for general relief. The answer denied the allegations of the complaint, except as admitted, and affirmatively alleged that the de

fendant was the owner in fee of the land and entitled to the possession thereof; that the plaintiff claimed some title or interest therein, but that he had no title to or interest therein whatever; and prayed, among other things, that the defendant be adjudged the owner in fee of the land and entitled to the possession thereof.

The trial court found that the plaintiff was the owner in fee and in the actual possession of the land; that the defendant had no title to or interest therein; and ordered judgment accordingly. It was so entered, and thereafter, and within six months, the defendant paid the costs, and duly demanded a second trial of the action. Thereupon the plaintiff moved the court to set aside the demand, and the defendant appealed from the order granting the motion.

The statute giving a second trial as a matter of right in actions for the recovery of real estate is a remedial one, to be liberally construed. The court, to determine the right to a second trial in any given case, will look to the substance of the action determined, and not to the form thereof, and if, in fact, it was an action in which either party sought to recover the possession of land, the right to a second trial must be conceded. Eastman v. Linn, 20 Minn. 387 (433); Ferguson v. Kumler, 25 Minn. 183; Schmitt v. Schmitt, 32 Minn. 130, 19 N. W. 649; City of St. Paul v. Chicago, M. & St. P. Ry. Co., 49 Minn. 88, 51 N. W. 662.

The answer in this case contains all of the essential allegations of a cross action for the recovery of real property, except that it neither admits nor alleges that the plaintiff is in possession, but the complaint alleges that the plaintiff is in possession of the land, and asks the court to adjudge that he is entitled to such possession; while the answer alleges that the defendant is the owner of, and entitled to the possession of, the premises, and prays the judgment of the court accordingly. Now, does the mere fact that the defendant by a general denial raised an issue as to plaintiff's possession change the substantial character of the answer as a cross action for the recovery of land? It would seem not. If the trial court had found that the plaintiff was in possession of the land, but that the defendant was the owner in fee, and entitled to possession thereof, and judgment had been entered accordingly, the plaintiff would clearly have been entitled to a second trial under the statute; for the findings would, in such case, be responsive to the issues, and

the defendant on such a judgment would be entitled to an execution for the delivery to her of the possession of the land she was adjudged to be entitled to the possession of. If, in such case, the plaintiff is entitled to a second trial, it is because, and only because, the action as to the defendant is, in effect, one for the recovery of the possession of real property. We are of the opinion that the trial court erred in setting aside the defendant's demand for a second trial.

Order reversed.

START, C. J. (dissenting).

I dissent, for the reason that the action as to each party is one to determine the title to real property, and not to recover possession thereof.

CHARLES A. COOPER v. SAMUEL L. HAYWARD and Another.

January 26, 1900.

Nos. 11,931-(210).

Promissory Note.

This is an action on a promissory note. Defense, that the note had been satisfied, and the defendants released therefrom. Held:

Verdict Sustained by Evidence.

That the evidence was sufficient to sustain the verdict.

Evidence of Admissions of Witness.

That it was not prejudicial error, in view of the facts stated in the opinion, for the trial court to receive, before the proper foundation had been laid, evidence tending to show that a witness had made prior inconsistent statements.

Refusal to Charge Jury.

That a request to charge the jury was properly refused because not justified by the evidence.

Action in the district court for Stearns county by plaintiff as administrator of the estate of William H. Hayward, deceased, to recover $515.80 and interest on a promissory note executed by defendants to the order of intestate. The case was tried before Baxter, J., and a jury, which rendered a verdict in favor of defendants. From an order denying a motion for a new trial, plaintiff appealed. Affirmed

George W. Stewart, for appellant.

Taylor & Jenks, for respondents.

START, C. J.

Action on a promissory note. Defense, that the note had been satisfied, and defendants released from further liability. Verdict for the defendants, and the plaintiff appealed from an order denying his motion for a new trial.

This is the third appeal in this action. See 67 Minn. 92, 69 N. W. 638, and 71 Minn. 374, 74 N. W. 152. The evidence on the last trial on the part of the defendants tended to show these facts: William

H. Hayward, a brother of the defendant Samuel L. Hayward, and his father, J. E. Hayward, were partners in the lumber business at the time the note in question was made, under the firm name of W. H. Hayward & Co. The defendant Samuel L. Hayward was then about to lose his stock, by reason of chattel mortgages thereon; and, not being on good terms with his father, he appealed to his mother for financial assistance. She, through her son William H. Hayward, caused the mortgages to be paid. William H. Hayward managed the firm affairs and handled the firm money, and also managed his father's individual affairs, and handled his father's individual money, and drew checks on his father's bank account, and signed his father's name to them, and was authorized so to do. By direction of his mother, and on the promise of his mother to shield him from his father's displeasure, he took the necessary money, belonging either to his father individually or to the firm, and paid the chattel mortgages. He took the note in controversy for the amount so paid, $578.25, but without the knowledge of his mother, who intended it as a gift. He died January 10, 1890, and his widow, his only heir, made a settlement of his partnership business with his father, J. E. Hayward, the surviving partner, whereby she conveyed to him all the partnership property and everything pertain ing thereto. The surviving partner, J. E. Hayward, died on March 13, 1895. His estate was duly probated, and all his personal property, except certain specific parcels, of which the note in question was not one, was duly assigned to his four daughters, who thereafter executed to defendants a full release, discharge, and satisfaction of the note. Only one claim was ever filed against the estate of William H. Hayward, which was for the sum of $26, dated November, 1887, presented to the probate court for allowance September 14, 1895, and was not allowed as a claim against his estate. The evidence on the part of the plaintiff tended to show that William H. Hayward paid the chattel mortgages against the defendant with his own money.

1. The plaintiff claims that the verdict is not sustained by the evidence. The principal contention in support of this claim is substantially this: The evidence was conclusive that the money which formed the consideration of the note belonged to either William H.