specially concurring.
I concur in the result of the majority opinion, but wish to limit the grounds of my concurrence.
In my opinion this declaratory judgment proceeding was legal in nature, and the defendant Thompson was entitled to a resolution of the questions of fact as in an action at law. In this respect I agree with the dissenting opinion and the authorities cited therein. The majority opinion seems to equivocate as to the nature of the proceeding and expresses doubt that it is legal in nature. In that regard I disagree with the majority opinion.
I do agree that Thompson’s conduct in treating the case in the trial court as an equitable proceeding, in failing to assert in the trial court his right to have the case treated as an action at law, and his acquiescence in the ruling of the trial court that the case was equitable, preclude him from now asserting that the questions of fact should have been decided as in an action at law.
I believe the questions of fact were properly re*200examined and decided in onr original opinion. I, therefore, concur in the result of the majority opinion.
Goodwin, J., concurs in this opinion.