Malin & Prosser vs. Rose, 12 Wend. 258

By the Court, Savage, Ch. J. Title first of

chapter fifth of the third part of the revised statutes, 2 R. S. 303 to 312, treats “ Of the action of Ejectment.” The 36th

section of the title declares, that every judgment in the action of ejectment, rendered upon a verdict, shall be conclusive as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming under him, subject to certain exceptions; one of which is, that the party against whom the judgment is rendered is entitled, at any time within three years after the rendition of the judgment, upon application to the court to have the judgment vacated, and a new trial granted as of course, upon payment of all costs and damages recovered by the judgment; and upon a subsequent application, within two years after the rendition of the second judgment, a second new trial may be obtained, if the court, in their discretion, think proper to grant it. § 37.

These provisions alter the effect of a judgment in ejectment, which formerly was not conclusive in any manner. The second title of this

chapter introduces a new proceeding, by which a person in possession of land claimed by another, may compel otjjer t0 pr5secute an action of ejectment to recover the land, or be barred. After various provisions in respect to such proceeding, the following

section is found : “ In such action of ejectment, a judgment obtained by either party, shall be conclusive against the other party, as to the title established in such action; and also, against all persons claiming under such party by title accruing subsequently to the service of the notice herein before provided.” 2 R. S. 314, § 14. To this declaration of the effect of the judgment, there is added no exception; and on the contrary, the language is, that in such action, the judgment, when obtained, shall be conclusive.

The difference is this: in the ordinary case, the losing party is entitled to ask that the judgment be vacated after it has been obtained, although the court may have refused a new trial upon the law and the facts of the case. In the class of special actions, to which this belongs, the parties are limited to the ordinary practice of the court in relation to granting new trials. Such was evidently the intention of the legislature, by making a distinction between the two classes of actions of ejectment.

The word such, in the 14th section, has an important influence: it confines the conclusiveness of the judgment to such action as is instituted in conformity to the previous sections of the article. Motion denied. As to the construction, of the statute, vide 5 Rep. 118, 119; 6 Bingham, 561; 6 East, 518; 8 Barn. & Cres. 104, 164; 1 T. R. 52, 96; 2 Barn. & Ald. 522; 3 Maule & Selw. 20.