ON PETITION EOR REHEARING.
Stiles, J.In this case, a petition for rehearing having been filed, in denying the petition, we deem it proper to add to the opinion on file something by way of enlargement and explanation, as it appears the opinion may be misunderstood.
In the first place, the statement in the opinion that this was a case in equity, goes no further than that the form of the complaint made it appear so. The cause, for the reason that the sums alleged to be due had become due before the trial, was treated by the court and„parties as an action at law for money due, and the judgment was for money. Under this view of it, the right to a trial by a jury existed, and when the court tried the case without, its proceeding was controlled by § 246, requiring the findings of facts and conclusions of law. Whether, in a purely equitable action, *377findings are necessary, it is not necessary to hold; but it would seem not, as such cases come up on appeal from final judgment upon the entire record and testimony for a new trial in this court. It is urged that \ 451 of the code practically does away with § 246; but we view the former section as only applying to equity causes, and as to be read in connection with that part of § 464 which refers to actions by equitable proceedings. Moreover, were the ap-pellee’s position as to § 451 admitted, its terms were not complied with. The evidence was not certified as required in that section, but in the form of a statement under the act of 1883; and not being so certified, the plain inference would be, that this obstacle to the objection that there were findings had no existence.
ANDers, C. J., and Scott, Hoyt and Dunbar, JJ., concur.