The plaintiff in this action filed a petition containing two counts, the first exhibiting a cause of action under sections 595 and 597 of the code (Gren. Stat. 1901, §§5082, 5084), and the second a cause of action for partition. The prayer was for both kinds of relief. The defendant answered, first, denying generally, and second, admitting possession and pleading full title in himself. Before the trial plaintiff dismissed his second cause of action. The allegations of the first cause of action in the petition, though plainly not made for that purpose, were sufficient to warrant relief by way of partition, and the prayer was not amended. After a trial judgment was rendered for the defendant, whereupon the plaintiff demanded another trial in due form, which demand was allowed and a second trial awarded as a matter of right.
This order is assigned as error, but, under the authority of Kennedy v. Haskell, ante, page 612, 78 Pac. 913, the ruling of the district court was right, and its judgment is affirmed.