Opinion by
Plaintiffs bill seeks to restrain defendants from tbe removal of certain culm banks, and also asks for an accounting as to culm previously removed. Tbe bill in brief avers plaintiff’s ownership and possеssion of culm banks containing between 170,000 and 190,000 tons and locatеd on tbe surface of certified lot No. 38 in tbe Second Division оf Certified Pittston Township, Luzerne County; that defendants and tbeir employees have wrongfully and forcibly entered upon said premisеs and removed over $2,000 worth of said culm and despite plaintiff’s notice and protest are still removing tbe culm and threaten to continue to do so and to forcibly eject plaintiff and bis servants therefrom, to bis great and irreparable damage. Tbе bill also avers tbe want of an adequate legal remedy; tbе multiplicity of suits at law that would be required and tbe defendants’ financial inability to respond in damages. Tbe prayer is for an injunction, accounting and general relief. Injunction affidavits and bond hаving been filed, tbe court below awarded a preliminary injunctiоn as prayed for, and, on motion to continue same, testimony was taken on behalf of plaintiff. Defendants filed an answer denying material allegations of tbe bill, and claiming title and possession of tbe culm in controversy, also questioning tbe jurisdiction of tbе court and averring that tbe suit -should have been brought at law, but submitted nо testimony. Tbe court made an order continuing tbe injunction until final bearing, and declined, at least for tbe present, to certify tbe case to tbe law side of tbe court. Defendants brought this appeal and assign as error the granting of tbe preliminary injunction, the order continuing tbe same and tbe refusal to certify tbe сase to tbe law side of tbe court.
We find no error in tbe record. While tbe granting or refusal of a preliminary injunction is tbe subject of appeal, yet in such case we refrain from a disсussion of tbe merits of tbe litigation and merely determine wheth
Complaint is also made of the order of the court in continuing the preliminary injunction until final heаring, but that is an interlocutory order and not the subject of an aрpeal. It is so held in the opinion of this court by Mr. Justice Simpson in Drum v. Dinkеlacker,
Treating the order of the court below as a refusal to certify the case to the law side of the court, pursuant to the Act of June 7, 1907, P. L. 440.(Purdon’s Digest, Yol. V, page 6061), it was an interlocutory order and not the subject of an appeal: Drum v. Dinkelacker, supra; Stuchul v. Stuchul, supra. The statute gives the defendant nо right to raise such question by appeal until after a decisiоn upon the merits, while the plaintiff is expressly given the right to appeal from an order certifying the case to the law side оf the court. See the 2d and 3d sections of the act.
The assignments of error are overruled and the appeal is dismissed at the costs of appellants.