On Petition foe a Reheaeino.
Berkshire, J.In the original opinion we omitted to make reference to the motion made to dismiss the appeal. *511The ground of the motion is, that the appeal was prematurely taken; that the judgment from which it was taken was not a final judgment.
Filed Dec. 14, 1889.We need not repeat the nature of the action as its character fully appears in our original opinion. Where the action is one primarily for partition, an appeal will not lie from the interlocutory order of the court appointing commissioners to make partition between the parties. But in the case under consideration the order’s for partition and appointment of commissioners were mere incidents to the judgment and decree of the court as rendered.
The principal questions involved were the title to the real estate in controversy, the right to the possession thereof, and whether or not the appellee, Mrs. Myers, was entitled to recover damages. As to all of these principal questions the judgment of the court was a finality, and the appellant had the right of appeal.
We do not care to refer to any other question presented in the petition for a rehearing.
.The petition is overruled.