Bank of Topeka v. Sadler

Citations

• 89 Kan. 321
• 131 P. 585
• 1913 Kan. LEXIS 60

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — First Trial Set Aside — Case Dismissed — Further Action Barred. Following Deming v. Douglass, 60 Kan. 738, 67 Pac. 964, it is held that a plaintiff in ejectment, who has voluntarily dismissed his action, after a judgment upon a first trial had been set aside under the statute (now repealed) allowing a second trial as a matter of right, is regarded as having thereby permanently abandoned his claim, and can maintain no further action thereon. *</p> <p>2. - Right of Action Lost — Not Restored by Taking Possession of Land. One who has in that manner lost the right to maintain such an action can not, by taking possession of the land while temporarily without an actual occupant, acquire the right to assert his claim of title by way of defense.</p> <p>3. Order — Granting Second Trial in Ejectment — Recitals of Record. A recital in the record of an ejectment action, that a judgment upon a first trial was vacated for good cause shown, upon application of the unsuccessful party, notice thereof being entered on the journal, is to be interpreted, in the absence of anything further to indicate the contrary, as showing that the judgment was vacated upon a demand made as a matter of right.</p>