Thе plaintiff appeals from an order made by the-court below referring, against his objections, all the issues of the case tо a referee, to hear, try, and report a judgment.
1. If this is an action at law for the recovery of money only, the-plaintiff is entitlеd absolutely to a trial by jury, although it involves the examination of a long account on either side, for the
Thе pleadings in the case at bar, especially the answer, clearly disclose a case which is one of equitable сognizance, to be tried by the methods pertaining to courts of equity. We do not, however, rest our decision in this case upon thе proposition that the pleadings show that the action is an equitable one, but upon the ground that the complaint discloses it to be such a one. It is true, the prayer of the complaint is for the recovery of money only, but this is not controlling as to the nature of the action; for, if the amount for which judgment is demanded can only be ascertained by an accounting between the parties, it is an equitable one. The first supposed cause of action in the complaint, standing by itself, is, if anything, strictly a legal causе of action. It is alleged therein that the plaintiff’s intestate borrowed from the defendant $3,700, and gave to him her promissory notes fоr this amount, and that he paid her $153.15 less than the full amount; but in the second cause of action the amount she was indebted to him “on aсcount of the indebtedness'set out in the first cause of action” was included in her estimated aggregate indebtedness of $6,680, which forms the subject-matter of this second cause of action. It is further alleged that, for the purpose of providing for this entire estimatеd indebtedness, she gave to the defendant her promissory notes for the amount thereof, and secured the payment thereоf by a chattel mortgage upon certain property and the crops to be raised
2. Upon the argument, counsel for respondent claimed that the order in this case is not appealable, but intimated that a decision upon the merits was desired. In view of the fact that the plaintiff may have taken this appeal in reliance upon what was said in the case of St. Paul & S. C. R. Co. v. Gardner, supra, we deemed it best to dispose of the case on its merits. But we are of the opinion —and so decide — that an order directing a compulsory reference is not an аppealable order. Such an order is analogous to an order of the court refusing a trial by jury because it is of the opinion that the case is one for trial by the court. In neither case can the trial before the court or referee be susрended, and an appeal taken. Such orders are not appealable, but are reviewable (a distinction somеtimes overlooked) on an appeal from an order denying a motion for a new trial, or from the judgment. What was said to
Order affirmed.