The following opinion on motion for rehearing was filed May 5, 1904. Motion denied:
Sedgwick, J.Upon this motion for rehearing the' appellants, who were defendants below, insist that the court had no jurisdiction to “adjudge the right of possession of the real estate in controversy.” They cite Schumacher v. Crane-Churchill Co., 66 Neb. 440, as authority for the proposition that, “Appellant Carey, being in possession of the rea.1 estate, had the absolute right to have that right passed on by a jury, should she so demand”; but that, case is not authority for plaintiff’s proposition. It was decided in that case that one who had commenced an action in ejectment for the possession of real estate, could not be deprived of a jury trial by an answer setting up equitable defenses. This being a case in equity, where the right to the possession of the real estate involved depends upon principles of equity that must necessarily be determined by the court, it is the duty of the court to determine all the issues including the right of possession. ■
It being insisted that the defendant Carey was in possession of the premises under a lease which does not appear to have been adjudicated below, and evidence upon questions affecting the right of possession having been excluded by the trial court, we think that the judgment of this court should not determine that question; and, to remove any doubt or uncertainty in that regard, the judgment heretofore entered in this court is modified so as to remand the cause to the district, court with instructions *747to determine the right of possession in accordance with the opinion and judgment of this court.
The motion for rehearing is overruled.
Motion denied.