JORDAN v. HARDIN

JORDAN v. HARDIN. (Circuit Court of Appeals, Seventh Circuit. July 15, 1892.) No. 15. New Trtal — Ejectment—Appeal—Res Judicata. Under Rev. St. 111. e. 45, § 35, which allows a defeated party in ejectment a new trial as matter of right upon payment of costs within one year after the rendition of the judgment, such defeated party is entitled to a new trial even though the judgment has been rendered pursuant to a mandate of the supreme court, and notwithstanding a new trial already had on stipulation'of the parties. In Error to the Circuit Court of the United States for the northern Division of the Northern District of Illinois. ‘ At Law. Ejectment by Gertrude EL Hardin against Conrad N. Jordan. On May 28, 1SS3, the case was tried for the first time, resulting in a judgment for plaintiff. This judgment was set aside, and a new trial ordered on stipulation of the parties. On January 18, 188G, the case was tried for the second time, and judgment rendered, for plaintiff for part only of the land in controversy. On writ of error to the supreme court this judgment was reversed, and the cause remanded, with directions to enter judgment in favor of plaintiff for all the land. Judgment was entered in obedience to this mandate, June 10, 1891. Defendant thereupon paid costs and moved for a new trial. The motion was denied, and he brings error. Reversed. Rev. St. Ill. c. 45, § 35, declares that: “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 á new trial granted in the cause, * * * but no more than two new .trials shall be granted to the same party under this section.” W. C. Goudy and John I. Bennett, for plaintiff in error. Dent & Whitman, for defendant in error. Before HARLAN, Circuit Justice, WOODS, Circuit Judge, and JENKINS, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. The judgment of the circuit court is reversed, with costs, and remanded to the court below, with directions to award a new trial.