¶1This is a petition for restitution of lands to the petitioner, of which, he alleges, he was dispossessed under a writ of habere facias possessionem, issued on a judgment rendered against him in an ejectment suit in which the Van Kirk Land & Improvement Company was complainant and petitioner was the defendant.
¶2For answer to the petition, the defendant therein not only denies the allegations of the petition but sets up facts going to show that the petitioner was not entitled to the relief prayed. The cause was tried by the court without a jury and on the evidence adduced, which is fully set out in the bill of exceptions, the court adjudged that the petitioner was not entitled to have the lands restored to him, and dismissed the petition.
¶3From the judgment, the petitioner appealed; and on the record, in which all the facts are set out, he asks for a mandamus if it should be determined that an appeal will not lie.
¶4It is clear, from an inspection of the petition and of the answer thereto, that the court was called upon to determine the legal title to1 the lands involved, and could not have granted the relief prayed except upon a determination of the disputed question of title. Manifestly, the determination of such a question is not within the purpose of an application for restitution; and especially is this time where the party defendant to the petition was not a party to the ejectment suit.
¶5Upon consideration of the cause, in al-1 of its phases, and without determining whether appeal or mandamus is the proper remedy, we are of the opinion that the circuit court properly denied the relief prayed, and, of consequence, that the judgment of that court must be affirmed.
¶6Affirmed.