The affirmance of the order of the Circuit Court refusing to permit complainant to dismiss his bill, without prejudice, and refusing to strike the defendant's answer and counterclaim, both of which are interlocutory in character, leaves the equity cause in the court below for such further appropriate equitable proceedings as may be according to law and equity practice. It must be presumed that upon the further consideration of the equitable aspects of the controversy between the parties, the court will not make any order or decree which will be violative of any right appellant may have to present to a court and jury for adjudication any purely legal claim not triable in the equitable controversy which is remanded for further proceedings, and until the court below shall violate some right of appellant in that respect, and the matter is properly brought before us for redress, we can make no appellate order which will decide the matter appellant attempts to present by his petition for a rehearing. Therefore the petition for rehearing should be and is hereby denied.
Rehearing denied.
WHITFIELD, P.J., AND TERRELL AND DAVIS, J.J., concur.
BUFORD, C.J., AND ELLIS AND BROWN, J.J., concur in the opinion and judgment. *Page 163