Downing

This was an action by the respondent against the appellant and her husband to recover on a promissory note executed by them jointly, and to foreclose a mortgage on certain real estate given by them to secure payment of the same. The husband allowed judgment to be taken against him by default. The wife answered, denying the execution of both the note and *472 mortgage, and setting up a homestead in the property. There was judgment against her, and she appeals.

The bill of exceptions shows that she demanded a jury trial, which was denied her, and she excepted. This is assigned as error. The respondent contends that she waived a jury trial, and it is so recited in the findings. But there is nothing in the record showing such waiver, and the recital in the findings that there was a waiver cannot prevail against the showing in the bill of exceptions that she demanded a jury and it was denied. The respondent further contends that the case was a purely equitable one, and that therefore she was not entitled, as a matter of right, to a trial by jury. But was this a purely equitable case?

The defendant denied the execution of the note, and denied that she was indebted to the plaintiff…