On Petition for a Rehearing.
Howard, J.The appellant has filed a petition for rehearing, claiming that jurisdiction on this appeal is in the Appellate Court, and asking that the case be transferred to that court.
In section 1 of the act approved February 16, 1893, p. 29, amending the act creating the Appellate Court, it is provided that “The Appellate Court shall not have jurisdiction of suits in equity, hereby meaning by the terms ‘suits in equity,’ such cases as were known and recognized prior to the 18th day of June, 1852, as suits of equitable cognizance, and wherein specific decrees are appropriate and essential.”
The tenth reason given by appellant in his motion for a new trial, the overruling of which was assigned as error, was, “That the court erred in overruling defendant’s motion to submit the issue joined on the second paragraph of the complaint to the court for trial without a jury.”
In support of this assignment, counsel for appellant argued, in this court, that “If the second paragraph of the complaint states any cause of action-, it is one of exclusive equitable cognizance.”
In this contention, we agreed with counsel, and the action of the court, in submitting the cause to a jury, was upheld only on the ground that the court treated the verdict as advisory, and that the judgment was based *23upon the finding of the court, and not upon the verdict of the jury.
Filed Sept. 29,1893.It has, theretofore, already, in effect, been decided that this cause was one of equitable cognizance, as contemplated by the statute, and, consequently, that jurisdiction is in this court. See Quarl v. Abbett, 102 Ind. 233; Ex parte Sweeney, 126 Ind. 583; Elliott’s App. Proced., chapter IV. Also Schunk v. Moline, etc., Co., 13 Sup. Ct. Rep. 417.
The petition for a rehearing is overruled.