This case was reserved from Holmes county, on a motion to dismiss the appeal, upon suggestion that there was a difference of opinion among the profession, as tó the right of appeal, when proceedings for partition were had under the statute.
When proceedings are had for partition, under the statute, no right of appeal to the Supreme Court exists.
When the partition is sought in chancery, by bill, the statute confers the right of appeal.
The reason is, in the first case, the statute confers no right of appeal; but the latter is an ordinary suit in chancery, which the statute authorizes to be appealed.
Both these positions are expressly sustained in the case of Doane v. Fleming et al., Wright, 168. And the court say, in the matter of Chapman’s last will, 6 Ohio, 148, the practice of removing causes, by appeal, for a second trial, is created only by statutory provision. Appeal dismissed.