Massie v. Stradford ( 1867 )

White, J.

A defendant, in an action for trespass to real estate, •caused the party under whom he claimed, to be made *a deifendant, and the latter, by cross-petitioD, set up his equitable ownership of the land, and asked a decree against the plaintiff for the legal title, and that the action for trespass be enjoined. Held:

1.. That the controversy arising on the cross-petition was purely ■equitable, and from a decree rendered against the plaintiff he could .appeal, and that the case was not one for second trial.

2. The issues as to the trespass should be stayed till the case made on the cross-petition be determined. If the case thus made .■should finally be decided against the original plaintiff, the whole case would be ended; if decided in his favor, the appellate court would remit the parties to the common pleas for the trial of the issues as to the trespass, or retain the case for final determination, .as the rights of the parties might require.

Motion overruled, and cause remanded to the district court.