
    Conard v. Conard.
    An appeal will lie from the court of common pleas to the district court in an action by one co-tenant against another for rents and profits, under the act of May 18, 1868 (S. & S. 578), involving an account of profits received and also of expenses incurred in the improvement and betterment of the common property.
    Error to the District Court of Licking county.
    The original action was brought under favor of the statute of May 13, 1868 (S. & S. 578), by a tenant in common against his co-tenant, for an account of rents and profits received by the defendant, who had enjoyed the sole possession of the common property for a number of years. The plaintiff claimed to be the owner of 13-86th parts of the premises, and, denying that the defendant's possession was under any contract or agreement between the parties, demanded judgment for 13-36th parts of the rental value of the premises.
    The defendant, by answer, alleged that he had not received from his use of the land profits equal to its rental value, and that during his possession he had expended large sums of money and labor in the improvement and betterment of the land, and in the payment of taxes; namely, in the construction and repair of permanent buildings, fences, ditches, &c.
    
      On the trial, in the court of common pleas, judgment was rendered for the plaintiff.
    Defendant appealed to the district court, where the appeal, on motion of the plaintiff, was dismisssed, on the ground that the cause was not appealable.
    The dismissal of the apjoeal is the sole ground alleged for error.
    
      James R. Stanbery, for plaintiff in error.
    
      Charles II. Kibler, for defendant in error.
   By the Court.

The action given by the statute is a “ civil action ” for rents and profits “ received ” by a co-tenant in excess of his full share, “according to the equity and justice of the case.” A civil action in which neither party has a right to demand a trial by a jury may be appealed. The case made upon this record is not an action for the recovery of money merely, but for an account according to the principles of equity, in which neither party had a right of trial by jury.

In this respect, at least, our statute differs from the English statute of 4 Anne, c. 16, § 27, which gave an action at law against a co-tenant as bailiff.

"Without undertaking, however, to define the rights given to co-tenants by our statute, we are unanimously of opinion that the district court erred in dismissing the appeal.

Judgment reversed.  