
    McCormick vs. Ketchum, imp.
    
      January 17
    
    February 8, 1881.
    
    Trial. (1) Legal or equitable action? Waiver of right to reference. (2) Separate trial of counterclaim by court. (3) Appeal not frivolous.
    
    1. Complaint for work and labPr. Answer: (1) A denial of the alleged value of such labor. (2) A set-off for'goods, etc, (3) A counterclaim, alleging that plaintiff had been a confidential clerk, etc., of defendants, and had received large sums of money to be expended in their business, for which he refuses to account, or to deliver up the books, etc. Defendants’ motion to refer the cause for trial (a.s one in equity) being denied, they withdrew the counterclaim, and took part in a trial by jury. Held, that the action was at law; that under sec. 2864, R. S., a reference was discretionary with the court; and that, if otherwise, the objection was waived.
    2. Whether, if the counterclaim had not been withdrawn, the court should have proceeded at the proper time to determine the matters embraced therein, not here decided.
    3. An appeal by defendant raising the questions here considered, held not frivolous.
    APPEAL from the Circuit Court for Portage County.
    The cause was submitted on the brief of Patchin <& Weed as attorneys, with Q-. W. Gate, of counsel, for the appellant, and that of Webb & Cochran for the respondent.
   Oetoh, J.

The complaint is for work and labor, and the answer is, first, that such work and labor was not worth the sum alleged; secondly, a set-off for goods, wares and merchandise, and money, and for board; and thirdly, as a counterclaim, that the plaintiff has been the confidential clerk and book-keeper of the defendants, and as such has received large sums of money to be expended in their business, for which he has not accounted, and refuses to so account or to. deliver up the books and papers. The learned counsel for the defendants moved that the case be referred, because it was a case in equity. The motion was overruled, and then the counterclaim was withdrawn, and the cause was tried by a jury, the 'counsel for the defendants appearing and cross-examining the witnesses of the plaintiff.

First. The plaintiff had the right to have his case tried by a jury, it being an action at law. Secondly. The reference of the cause was discretionary with the court. Section 2864, R. S. Thirdly. The irregularity, if any, was waived by withdrawing the counterclaim, and submitting the case to a trial by jury. If the counterclaim had remained in the case, the circuit court, at the proper time, might have determined the matters embraced in it without a jury; but whether it would have been proper or necessary for the court to have so disposed of the matter of the counterclaim, we do not decide, because the question is not before us.

We cannot say that this appeal is frivolous, and therefore deny the request of the counsel of the respondent for damages and .double costs. Northwestern Mutual Life Ins. Co. v. Starkweather, 40 Wis., 341.

By the Court. — -The judgment of the circuit court is affirmed.  