This case was decided by this court in an opinion appearing in 32 S. D. 142, 142 N. W. 180. A supplemental brief by appellant filed after the cause bad been assigned to the judge who wrote the opinion was then inadvertently overlooked. That opinion was based upon two propositions; (1) that the record did not contain material sufficient to authorize this court to pass upon the instructions given and refused; (2) that this was an equity action and the verdict of the jury was merely advisory to the trial court. The second proposition was one that was raised by this court. Both parties and the trial court had proceeded, both at the trial and upon the motion for a new trial, upon the theory that the cause was one .triable by jury. The cause was argued in the briefs in this court as though the case were a jury case. A petition for rehearing was filed in this court calling attention to the filing of the supplemental brief. This petition did not point out the fact that no findings of fact had ever been made by the trial court. In justice to appellant’s counsel this court in an opinion denying the petition for rehearing, 32 S. D. 456, 143 N. W. 369, corrected the statement of facts in the former opinion; showed the lack of materiality in the assignments of error based upon the instructions; and reiterated the proposition that this cause being a cause in equity", the verdict of the jury was merely advisory. Upon the filing of the remittitur in the tidal court, the defendant moved that court to vacate the judgment, because of the absence of findings of fact and conclusions of law. This motion was denied and defendant has appealed therefrom and from the judgment to this court. Plaintiff has now moved for a dismissal of this appeal upon the ground that the original judgment of the trial court as affirmed by this court has become res judicata.
Whether in strictness this question should be determined upon this motion, or upon a consideration of the merits of this appeal, we do not decide. We are clearly of the opinion that the question would have to be determined adversely to appellant at one time or another. In order to save expense to the parties, we de~ *600cicle this question now, as we are in possession of all the facts that could possibly be material to the hearing upon the merits of the appeal.
[i] The former appeal was taken from the judgment and order denyying a new trial. That judgment and order were affirmed by this court upon -the merits. All of the questions raised or that might have been raised upon that appeal are now res judicata. The present appeal from that judgment and from the order denying defendant’s application to set aside the judgment, or from either of them-, may not now be entertained. It is immaterial that upon the former appeal the only questions argued or errors assigned related to the instructions given to the jury. The trial court could not lawfully have granted the application to set aside the judgment. The case was ended. Collins v. Gladiator Gold Min. & Milling Co., 19 S. D. 358; 103 N. W. 385; Heinlen v. Beans, 73 Cal. 240; 14 Pac. 855; Tilleney v Wolverton, 54 Minn. 75, 55 N. W. 822; Hibbs v. Marpe, 84 Minn. 178, 87 N. W. 363; Crowns v. Forest Land Co., 100 Wis. 554, 76 N. W. 613; Ean v. C. M. & St. P. Ry. Co., 101 Wis. 166; 76 N. W. 329; Richter v. Leiby’s Estate, 107 Wis. 404, 83 N. W. 694; 3 Cyc. 485.
[2-3] We are now frank to confess that this court erred in applying to this -case upon the former apeal -the rules of law (correct though they be) announced in the two- opinions. This court should have treated the case as it was treated by the parties and by the trial court, viz.: as though it were an action at law. We should have passed upon the assignments of error relating to the instructions and should have determined the case upon the theory upon which the parties presented it to this court. The question of whether error was committed in trying an equity case to the jury as though it were an action at law, cannot be raised for the first time on appeal, either by the parties, or by this court. It was competent for the parties to waive their right to have the case tried as a court case, just as it is competent for parties to waive a jury and fry a question cognizable by a jury to the court. McEwen v. Gotthelf, 31 S. D. 180, 140 N. W. 264.
We have now carefully considered those instructions and the evidence presented in the record upon the former appeal, and while we are now powerless to make a binding ruling upon the *601merits of that appeal,-yet we are convinced that no prejudicial error was committed by the trial court.
The present appeal is dismissed.