#### The Administrator of John Reed *v.*John W. Reed and others.

1. Whether an action is to he regarded as ono for the recovery of money only, so as to entitle the parties to demand a second trial under the statute, is not to be determined by the prayer of the petition alone, but depends as well upon the case made, or facts stated in the petition.

2. Where an action was brought by the heirs against the administrator of an intestate, charging that he had made a fraudulent settlement of his accounts; that he had fraudulently sold the real estate for payment of debts, at an under-value, and when such sale was unnecessary; and that upon a fair and full settlement there would be a large sum of money, not less than g6,000, in his hands for distribution, and demanding a judgment for said sum of *$6,000*— Held, that this was not an action to recover money only, and that the parties were not entitled to a second trial therein, but to an appeal.

Motion for leave to file a petition in error to reverse tbe judgment of tbe District Court of Morgan county.

Tbis was an action brought by tbe defendants in error, who are tbe lreirs at law of "William Reed, against John Reed, tbe administrator. Tbe petition charges that tbe defendant some years previously, and when tbe plaintiffs were minors, bad procured tbe probate judge to sanction and approve a false and fraudulent settlement of tbe defendant’s accounts as such administrator, which fraud the plaintiffs bad only lately discovered. They charge that various items of property and assets wore omitted from the inventory; that just charges against tbe administrator are omitted from tbe account; that sundry items are credited therein to tbe administrator which are false and unjust; and that be fraudulently sold tbe real estate to pay debts, when there was no necessity therefor, and for less than its full value. They say that upon a fair settlement of tbe estate, there will be found to be assets and money in tbe bands of tbe defendant, to which they are entitled as distributees, to tbe amount of three thousand dollars, and that they have been *423damnified to the amount of three thousand dollars. They, therefore, without asking for an account, or praying that the fraudulent settlement may be set aside, demand a judgment against the defendant for the sum of six thousand dollars.

The defendant put in an answer denying all these charges, and alleging that he had fully administered the estate, and accounted for all its assets.

The cause was tried by a jury, who failed to agree, and was subsequently submitted to the court, who found against the plaintiffs as to the charges in respect to selling the real estate, but found that on a just settlement there was $561.24 in the defendant’s hands for distribution, and gave the plaintiffs judgment for that amount.

Both parties gave notice of a demand for a second trial, which the court refused to allow, on the ground that the action was appealable, and both parties thereupon gave notice of appeal. The plaintiffs perfected their appeal, and the cause was taken to the District Court, the defendant failing to perfect his appeal.

In the District Court the cause was, by agreement, referred to a master, to state an account between the parties, and to report tho testimony and his findings upon the issues. Subsequently, the death of the defendant having been suggested, his administrator was made a party.

The master reported that he found the issues in the case for defendant, and that there was nothing due from him to the plaintiffs, and exceptions to the report were filed by the plaintiffs.

The court thereupon, on motion of the plaintiffs, dismissed the appeal, holding that tho case was one for second trial, and not for appeal, and remanded the cause to the Common Pleas.

When the case came back to the Common Pleas, that court refused to allow a second trial, holding that tho action was appealable; and thereupon, on motion of the plaintiffs, the judgment of the Common Pleas was revived, *424by making the administrator of the defendant a party thereto.

Leave is now asked to file a petition in error here to reverse the judgment of the District Court.

*Pond $ Jones,*for the motion.

*Hanna § Kennedy,*contra.

Welch, J.

The single question presented is whether this was an action “ for the recovery of «money only.” We think it was not, and that, therefore, the District Court erred in dismissing the appeal.

I am not at all surprised that the courts below were puzzled in determining to what class this action belongs. If we look to the prayer of the petition alone, it appears to be an action for the recovery of money only. But if we look to the case made, or facts stated in the petition, it plainly appears to be an action ’ to set aside a fraudulent settlement, and to compel an account by an administrator or trustee. The case made in the petition, as well as the prayer, must be looked to in determining the character of the action. ■ In view of the facts stated, the prayer of the petition must be understood merely as a prayer that the amount to be found due from the defendant, after setting aside the fraudulent settlement, and compelling him to come to a just account, shall be recovered by the plaintiff. The action is not one in which a jury trial is demandable as of right, and the parties had the right of appeal. The judgment of the District Court dismissing the appeal and remanding the cause, and also- the subsequent proceedings in the Common Pleas, will therefore be reversed and set aside.

*Judgment accordingly.*

McIlvaine, C. J., White, Rex, and Gilmore, JJ,, concurred.