Defendants petition for a rehearing. It is claimed that the decision placed a wrong construction on 2 Mason Minn. St. 1927, *Page 191 § 9498 (2), by stating that an order to be appealable must be "final." In the sense used, it was intended to convey the thought that even an order in respect to a provisional remedy to be appealable must show that the court considered the application and either granted or denied it on its merits, and did not merely, in the exercise of judicial discretion, postpone the determination of the question until reached later in the progress of the suit. The trial court exercising the functions of a court at law and of a chancellor in equity may in his discretion direct the order of trial of the issues raised by the pleadings. The order here appealed shows on its face that the court below deemed it proper to have it determined at the regular trial of the case whether or not the contract, which is the basis for defendants' application for a provisional remedy, has a legal existence — that is, whether or not plaintiff signed it knowingly without fraudulent representation by defendants as to its character. The trial court has not as yet passed on the question whether defendants are entitled to an abatement of this action in this state if the contract is binding on plaintiff.
The claim is also that the opinion failed to pass on the proposition that defendants have no adequate remedy at law for the enforcement of their contract unless this action be stayed until the validity of the contract be first established. Having reached the conclusion that the order was not appealable, the decision should have ended there; but, in deference to the earnest request of the parties, as we understood it, we indicated that if in the orderly procedure of the case it was ascertained that the contract on which defendants base their relief was binding upon plaintiff, he should be prohibited from suing on his cause of action in the courts of this state. The procedure in the litigation is for the trial court.
The third ground for rehearing is that our opinion is based "on a federal statute not in existence." It was not intended to place the decision on any federal statute. Defendants cited and relied on Enelow v. New York L. Ins. Co. 293 U.S. 379,55 S. Ct. 310, 79 L. ed. 440. The federal judicial code there cited and found in the margin of the decision was correctly cited in our opinion. But our statement that the judicial code referred to provided that where *Page 192 equitable issues are presented they should be heard "by a chancellor according to equity procedure in advance of the trial by jury at law of any purely legal issues" is incorrect in that the quoted words are not from the code cited, but are a recital by Chief Justice Hughes in his opinion of the proceeding had therein.
The rehearing is denied.
Mr. JUSTICE STONE took no part in the consideration or decision of this case.