Spence v. Basey ( 1877 )

By the Court.

The appeal was improperly dismissed by •the district court. The order appealed from was a final order in a civil action, in which the parties affected thereby had not the right to demand a trial by jury. Section 5 of the act to relieve district courts, etc., as amended May 16, 1868 (S. & S. 589).

The case made by Spence in his answer and cross-petition was one for equitable relief only, and as between him .and the wife of the mortgagor, as the claimant of a homestead, there could have been no issue joined for the trial of which either party could have demanded a jury.

Motion granted, judgment reversed, and cause remanded to district court for further proceedings.