¶1Appellee, as plaintiff, brought this action in the district court of Arapahoe county, against appellant, as defendant; from a judgment for plaintiff, defendant appealed to the court of appeals, where the judgment of the trial court was affirmed. From that judgment defendant appeals to this court.
¶2Appellee moves to dismiss upon the ground that this court is without jurisdiction. Appellant contends that in order to determine the rights of the parties to the subject-matter of the controversy, it is necessary to construe section 6, article 4 of the constitution, while appellee asserts that the construction of a statute, namely, section 33, article 3 of the charter of Den*322ver, Session Laws, 1893, p. 167, only, is necessary. Whether or not the construction of the provision of the constitution, supra, is involved, is the one question to pass upon in determining the jurisdiction of this court in this case. A determination of that question in this particular instance incidentally determines the rights of the parties to the subject-matter of the controversy, and therefore necessarily determines the cause upon its merits. Such being the result of passing upon the motion, it will not be heard in advance of a consideration of the cause upon its merits, and it, therefore, stands continued, with leave to present on final hearing.
¶3Motion denied without prejudice.