The opinion of the court was delivered by
Hoyt, J.This action was commenced as a suit at law; defendants answered setting up facts which they claimed constituted a defense in equity, and asked that the further proceedings in the cause be conducted in accordance with the rules governing such suits. This course was taken, and, by consent of all the parties and of the court, the action was tried and decided as a cause in equity. Not only was that the status of the case in the court below, but appellants in this court still adhere to their claim that by their answer the case was transformed from a suit at law to a proceeding in equity. No statement of facts was settled, and the cause is brought to this court upon the record, withous any of the testimony or other evidence being made a part thereof.
Respondent moves to dismiss tlie appeal because this court is not possessed of enough of the case to enable it to hear and determine the matter in controversy. The motion must be granted, as this court has frequently decided that in a case in equity this court gets possession of the *378case for no purpose at all unless its possession is such that it can retry the case as fully as did the court below.
"We do not decide whether or not the answer transformed the suit to one in equity, but we do decide that where both parties and the court have treated the case as in equity, and tried the same as such, this court will hold them bound by such action, and that, for the purpose of this appeal, this must be treated as a cause in equity, and governed by^the rule announced in the case of Enos v. Wilcox ante, p. 44, and other cases decided by this court as above stated.
The motion to dismiss is granted.
Anders, C. J., and Scott, Stiles and Dunbar, JJ., concur.