It would appear that the defendant, as matter of right, was entitled to the order in question. The only valid judgment which was rendered in the progress of the trial was the last judgment which had been affirmed by the court of appeals, and, as a matter of right, the defendants were entitled to have this judgment vacated, and a new trial ordered, upon the terms prescribed by the Code.1 Three years not having elapsed from the time of the entry of this judgment, it was immaterial what the defendants did in the mean time in respect to appeals or other proceedings in reference to said judgment. There seems to be therefore no reason for disturbing the order appealed from, and the same should be affirmed, with $10 costs and disbursements.
Code Civil Proc. § 1525, provides that, in an action to recover real property, at any time within three years after judgment is rendered, upon application of the party against whom it was rendered, and upon payment of all costs and damages awarded to the adverse party, the court must make an order vacating the judgment and granting a new trial.