By the Court —
Berry, J.— We perceive no reason why the order made in this action in the District Court is not appealable, for it appears to have been both in form and effect an order granting a new trial.
Whether the respondent was or was not entitled to a new trial depends wholly upon the statute. Sec. 5, Chap. 64, page 595, Pub. Stat., enacts “that any person against whom a judgment for the recovery of specific real property is rendered, may within six months after written notice of the judgment, upon the payment of all costs and damages recovered thereby, demand another trial by notice in writing to the adverse party or to his .attorney in the action, and thereupon the action may be brought to trial by either party.” Now, the only party to an action of ejectment as in this ease against whom a judgment for the recovery of real property can be rendered must be the defendant. He is -in possession, and in ho reasonable sense can it be contended that a judgment denying the plaintiff’s right to a recovery is a judgment against him for a recovery. It is impossible to recover from him what he has not got. Again, the second trial is to be granted upon the payment of costs and damages. Damages in ejectment are awarded for the withholding of the property in dispute or for rents and profits, and it cannot be claimed that such damages could be recovered against a plaintiff not in possession. Sec. 4, Id. By section 7 where the result is changed by a new trial, restitution is to be ordered in case the prior judgment has been executed. *401And this serves to confirm the idea that the party from whom the property has been taken away, and who has been deprived of his possession by the judgment in the first trial, is the party entitled to review by a second trial.
•Whether each party ought or ought not in reason to be entitled to anew trial in actions of ejectment, the théory of our law on the subject seems to he that when the question of title has been once fairly litigated according to the course of practice in the courts, the defendant, the party in possession, shall not be harassed by a second trial. When the plaintiff institutes his action he ought to know whether he has any titlp and what it is, and our statute does not see fit to allow him to make repeated experiments at the expense and to the inconvenience of the defendant, unless he can bring himself within the rules applicable to other civil actions.
The order granting another trial is reversed.