In May, 1882, the relator commenced proceedings by mandamus in the district court of Lancaster county to compel the defendant to act upon á certain claim filed by him against the county. The defendant filed a return in the form of an answer to the writ, to which the relator filed a demurrer. The defendant appeal to this court. The relator moves to dismiss the appeal as being unauthorized.
Appeals are authorized by statute in actions in equity, but a proceeding by mandamus is strictly a legal action. In Commonwealth v. Dennison, 24 How., 97, Taney, Ch. J., says: “A mandamus in modern practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ.” An action at law can be reviewed only on error. The motion to dismiss the appeal must therefore be sustained.
The attorney for the defendant asks to have the transcript retained in this court, and for leave to file a petition in error. This has been .permitted in some cases, where in
The motion must be sustained.
Motion sustained.