The ground assumed by the appellant’s counsel is not tenable. The award of a new trial in the first ejectment suit, wiped out the verdict, and no judgment was or could be rendered on it. It is not a bar to anything. It might well happen that a plaintiff with a perfect title might fail in his suit, by failing to prove possession by defendant at the time of suit brought, and a verdict pass for the defendant. In such case, or in any case, if the verdict be set aside, it could not bar another action.
Setting aside the verdict is, as if it had never been, and cannot be used anywhere, for any purpose. Followed up by a voluntary non-suit, the whole action and all its parts are null.
The judgment is affirmed.
Judgment affirmed.