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The opinion of the court was delivered by

IíoutoN, C. J.:

This was an action brought in the court below by the.-plaintiff in error against the defendants in error, for the recovery of the real estate described in the petition, and damages for its detention. The action was begun November 28th, 1879; the summons was personally served on F. L. Sanders and Mary A. Sanders, and left at the usual place of residence of Bion Sanders, December 1st, 1879. At the January term of the court for 1880, and on the 22d day of January, the defendants having failed to demur, answer or otherwise appear, judgment was rendered for plaintiff against defendants for the recovery of the real estate, and for the sum of $2,400, as damages for the unlawful withholding of the same, and also for all costs. On February 9th following, execution was issued upon the judgment. After the issuing of the execution, and on the same day, F. L, Sanders filed a motion to set aside the judgment, alleging that fhe defendants were entitled to two trials, and thereon obtained a stay of the execution. On March 5th, and during the January term, all of the defendants filed their joint motion for a new trial as a matter of right under § 599 of the code. On the same day, without any showing therefor, the court vacated the judgment, and granted a second or new trial. The plaintiff duly excepted, and has brought the case here.

The question presented for our decision is, whether the de*549fendants, after making default and allowing the judgment to be taken and entered of record, were entitled to another trial as a matter of right, and without showing any cause therefor. Sec. 599 reads:

“In an action for the recovery of real property, the party against whom judgment is rendered may, at any time during the term at which the judgment is rendered, demand another trial by notice on the journal, and thereupon the judgment shall be vacated, and the action shall stand for trial at the next term.”

Within the meaning of “another trial,” under the statute, we do not think such second trial is authorized as a matter of right and without any showing, where the judgment is by default and an assessment of damages only is had. So far as the action for the recovery of the possession of real property was concerned, every material allegation in the petition, no answer having been filed, must have been taken as confessed under § 128 of the code. All the court had to do, in view of the default, was merely to assess the damages under the evidence offered. The object and purpose of § 599 are to provide a new remedy in actions for the recovery of real property, only where there has been a judgment rendered on the trial of the merits of the cause. Its purpose is not merely to retry the amount of damages to be recovered. It is true that by the provisions of § 83 of the code, a claim for damages for withholding the real estate may be united in the petition with the action to recover the real estate; nevertheless § 599 is intended to apply to actions brought under the prior § 595. For some reason, the legislature thought it wise to permit a second trial as a matter of right in actions for the reeovery of real property; but where judgment is rendered on default and without any issue of law or of fact, no trial has been in fact had, as that term is generally understood; and thei’efore § 599 has no application, although a claim for damages is made in the petition, and there has been an assessment of such damages upon default. Where an answer has been filed and a trial has been had, of course in granting a new trial the order applies to the claim for damages as well as to *550the cause of action to recover the real property. If the causes of action are united in the same petition, a second trial involves all, not a part only, of the issues in the case. If the argument of counsel in opposition to these views is correct, “another.” or second trial could be had in the absence of any answer at all, and then such second trial would only reach the amount of damages, nothing more. It is contended, how-, ever, that because the journal entry of the judgment alleges that the cause came on regularly for trial, and. was submitted to the court, a trial was in fact actually had. Yet, when we examine the entire record and find that there was no demurrer or answer, and only an assessment of damages, surely it cannot be fairly said that there was a trial in fact, as generally understood. We must look to the substance of the judgment, as well as to its form, and also to the pleadings under which the judgment was entered. Counsel attempt to distinguish the case of Fish v. Baker, 47 Ind. 534, upon the theory that a formal entry of default was made in that case and not in the cáse at bar. Under our practice, it is not usual to have the default formally entered before the final call of the case for judgment. An examination of the record shows that due service was made, and that the default existed before judgment; therefore a formal entry of default would not have changed the status of the proceedings. In one sense there had been a hearing or a trial, but not a trial in fact within §599; and it hardly seems reasonable to hold that a second hearing should be allowed as of right to the defaulting parties. We know as a matter of practice, while two trials are allowed as of right in this class of actions, when issues are joined between the parties, that frequently only one trial in fact ever takes place; yet this is an abuse, instead of a proper use of the statute, and is a practice to be condemned rather than to be favored. Such a practice is often adopted by the parties with the expectation of surprising each other on the second trial, or of obtaining some undue advantage upon the final trial by refusing to disclose the actual facts at the first trial. Such a practice is not founded in good faith, and virtually ignores the statute and deprives the parties of the actual benefits of two *551trials. . As there never had been any trial between the parties to the record upon any issues of' fact or law joined between them, it would be a contradiction of terms, and in violation of the spirit of the statute to hold that there could be “another” or a second trial without any showing, as a fnatter of right. (Fisk v. Baker, supra;(Race v. Malony, 21 Kas. 31.)

The order of the district court must be reversed, and the case remanded'.

All the Justices concurring.

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