Cunningham v. Smith

The opinion of the court was delivered by

Schoonover, J. :

This action was brought by plaintiffs in error, as plaintiffs, against defendants in error, as defendants, in the district court of Elk county, to obtain a decree setting aside a former judgment of such court foreclosing a mortgage upon certain real estate occupied by plaintiffs as a homestead, and to have -the title of plaintiff thereto quieted.

The only question presented to us is, Were the plaintiffs entitled, as a matter of right, to a second trial in the court below, under the provisions of section 6, chapter 96, General Statutes of 1897 (Gen. Stat. 1899, § 4894)?

The record shows that plaintiffs were, at the time the action was commenced, in possession of the premises in question, and this action does not come within the class of actions for the recovery of real property. In similar cases, our supreme court has held that the defeated party was not entitled, as a matter of right, to a second trial. (Swartzel and others v. Rogers, 3 Kan. 374; Northrup & Chick v. Romary, 6 id. 240; Blackford v. Loveridge, 10 id. 101; Main v. Payne, 17 id. 610.)

The judgment of the district court is affirmed.