1. An action under the code for partition in which equitable relief is to be administered between the parties in order to effect a partition of the estate is appealable.

2. Where a suit which is appealable is disposed of in the court of common pleas on a demurrer to the petition, and an appeal taken by the plaintiff to the district court, the appeal can not be dismissed on the ground that the petition does not show a cause of action. The appellant has the right to have the judgment of the appellate court on the demurrer to his petition; and if the judgment is against him to ask leave to amend.

*4413. Where it appears from the journal entries of the court, in such suit, that the demurrer tp the petition was sustained, and the “petition dismissed,” {he presumption is that the dismissal was by the court, and not the voluntary act of the plaintiff.

4. The judgment of dismissal in such ease is a final judgment from which an appeal may be taken.

Leave granted, judgment of the district court dismissing the appeal reversed, and cause remanded.