1- tiTanfe novo: Sivoívedinw action?16 I. A preliminary question is whether the action is triable denovo in this court. Plaintiff’s action was in equity, and the issue between intervenor and defendant was tried to the court. Counsel for the intervenor contends that, as no order was made in the court below transferring the issue to the law side for trial, the case should be regarded as an equitable one, and tried according to the rules governing the trial of causes of that character. The uniform practice of this court has been to regard cases which were tried in the lower courts under the rules governing the trial of equitable actions as belonging to that class, whether any question of strictly equitable jurisdiction arose or not. But, in determining whether a case shall here be regarded as at law or in equity, the mere fact that it was tried to the court, rather than to a jury, is not conclusive ; for any ordinary action may be tried in that manner. And when the character of the question at issue between these parties, and the manner in which it arose, are considered, we are of the opinion that the case on this appeal should be regarded as one at law. The question is not one of equity jurisdiction, but is determinable in a court of law; and, strictly speaking, it did not arise in the equity action. Neither is it between the parties to that issue. All questions arising under plaintiff’s petition were disposed of by the stipulation. This question relates merely to rights of intervenor and defendant in the fund which is the fruit of that litigation. The contention is as to the terms of the agreement under which Lundburg transferred the note to defendant, and we will determine the character of the proceedings here upon a consideration of the nature of the question, and the character of relief demanded, rather than the mere form of the trial below, which, as we have said, would be applicable to an action of either character. As we regard the case as a law action, and as the only question presented is one of fact, it is only necessary to say that, as there was a fair conflict in the *561evidence, we cannot, under the, well-settled rule, disturb the finding of the district court.
3' nptefpro^ Storaeyfees: cSSoSbie. II. As to defendant’s appeal. The agreement of the intervenor was that, it would pay defendant whatever sum the court should find in its final decree was due defendant from plaintiff: on the note. Defendant’s claim was that Lundburg assigned the note to him as collateral security for an indebtedness he was owing him. It is very clear that the object of the parties was to secure that indebtedness to him in case he should be able to establish his claim. The attorney’s fee which, under the terms of the note, might be taxed against plaintiff in the action for the enforcement of the note, does not pertain to the debt evidenced by it; but is in the nature, rather, of costs of the proceeding. Intervenor’s undertaking was, by its terms, to pay the debt which defendant claimed had been secured by the endorsement of the note. Yery clearly it did not include the attorney’s fee. The case will be affirmed on both appeals.
