dissenting.
I dissent from the conclusions of the majority. While the first finding of the district court was probably induced by an erroneous view of the law, an examination of the record shows that the material conclusion stated is sustained by undisputed proof. In other words, it was conclusively proven that plaintiff, by virtue of his mort*449gage, had a valid lien on the property in controversy and was entitled to the immediate possession thereof. The other findings are supported by sufficient competent evidence. It thus appears that when the action was commenced, the plaintiff had a mortgage lien on the corn; that he was legally entitled to its possession, and that the amount of his lien exceeded the value of the property. It also appears that, pending the litigation, the corn was sold by agreement of parties. In the opinion of the majority there was error in receiving evidence of plaintiff’s right under the mortgage and in making the samé a factor in the judgment rendered. I think the action of the court was strictly in accordance with the statute under which the proceeding was had. Section 1041 of the Code provides, in cases where the plaintiff, after obtaining possession of the property, fails to prosecute his action to final judgment, that a jury shall be impaneled on the application of the defendant “to inquire into the right of property and right of possession of the defendant to the property taken.” It is further provided that the jury shall find whether the defendant had the right of property, or right of posession only, at the commencement of the suit, and that if they find either in his favor, they shall ascertain and fix his damages. Section 191» of the Code provides that in the cases mentioned in section 1041 the judgment shall be for a return of the property or for its value or the value of defendant’s possession, in case a return can not be had, and for damages and costs. From these statutory provisions it is apparent that where the plaintiff has obtained possession of the property and fails to prosecute his suit, or is unsuccessful in its prosecution, there must be a judgment against him for a return of the property, if the jury upon inquiry find that the defendant had the right of possession when the action was commenced. There must also be, in such case, an alternative judgment for the value of the property or for the value of defendant’s possessory interest, and for damages and costs. The merits of the controversy must be determined. *450The condition of the undertaking is “that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him” (Code of Civil Procedure, sec. 1037); and upon this undertaking no action can be maintained until “an execution, issued on a judgment in favor of the defendant in the action, shall have been returned that sufficient property whereon to levy and make the amount of such judgment cannot be found in the county.” Code of Civil Procedure, sec. 1045. A plaintiff whose action is dismissed at his instance, or over his objection, is not out of court. By the order of dismissal he loses the right to an affirmative judgment establishing his interest in the property; he loses the right to recover damages and also the right to recover costs, at least such as had accrued up to the time the order of dismissal was made. His action being dismissed, he ceases to be a pursuer and assumes an attitude of defense. The defendant then becomes an actor. He be comes entitled to a judgment against the plaintiff if the jury shall find upon inquiry that he had the right of property or right of possession when the action was commenced. In the language of the statute, “if they find either in his favor, they shall assess such damages as they think right and proper.” This language clearly implies that they may find neither in his favor; that the plaintiff may defeat his claim by showing right of property and right of possession in himself or in a stranger when the chattels were replevied. The majority .hold that only the defendant’s right of property and right of possession are to be inquired into, and that the facts are to be ascertained by listening only to the evidence of the defendant. How the rights of the defendant are to be determined without at the same time determining the rights of the plaintiff is difficult to understand; how it can be decided in an action where both parties are before the court that one of them is owner of the property without deciding that the other is not such owner, and so adjudicating the entire matter, seems quite incomprehensible. If there is *451not to be a trial on the merits that will settle, once for all, the controversy between the parties, why impanel a jury to inquire into the right of property and right of possession? As the finding, in the absence of any evidence, would have to be for the defendant, the investigation by the jury would seem to be a needless and idle ceremony. If the plaintiff must stand mute during the trial; if he can not possibly succeed in the action; if the finding and judgment must necessarily be for the defendant, the function of the jury in the case is merely to announce to the court a conclusion already ascertained and inexorably fixed by the law. In my opinion, the defendant’s right to a judgment for anything does not stand confessed. The law contemplates that he shall make proof, and that the plaintiff may defend. It would, it seems to me, be a monstrous perversion of justice to permit a defendant to recover a judgment for the value of property of which he had neither the title nor rightful possession, merely because, through some irregularity in the proceedings, the plaintiff’s action was dismissed. The objection suggested in the opinion of the court, that to permit the action to proceed on the merits, would be to cast the burden of proof on the defendant, is a slight and altogether insufficient reason for declining to follow the plain and imperative provisions of the law. In this case, it being established by the findings of the court that the plaintiff was entitled to the possession of the corn when the action was commenced, and that the value of his special interest exceeded the value of the property, the defendant failed to fulfill either condition upon which his right to a judgment depended. There is no reversible error in the record, and the judgment should be affirmed.