
    Kosinski v. Rochowiak. Przybylski v. Rochowiak. Wisczynski v. Rochowiak.
    (Decided June 1, 1931.)
    
      
      Messrs. Marshall, Melhorn, Marlar S Martin, for plaintiffs.
    
      Mr. Warren L. Smith, for defendant.
   Richards, J.

The question in these three eases is the same, and will be disposed of in one opinion.

The petitions show that in June, 1927, the mother of plaintiffs, desiring to make a distribution of property among her children, informed the defendant that she would deed to her a certain house .and lot in Toledo if she.would pay to the plaintiffs, who are her other children, a certain amount of money as their share of the mother’s estate. This was fixed at $900 as to one of the children, $500 as to another, and $200 as to the third. The petition avers that the defendant agreed to pay each of the plaintiffs the amount named by the mother, and that the mother, pursuant to the agreement, conveyed the property to the defendant. Thereafter the mother died, and the plaintiffs each made demand for the amount of money due, which the defendant refuses to pay.

The second cause of action makes all these averments a part thereof, and avers that the defendant took possession of the property, and now has possession and holds the property subject to a trust in favor of the plaintiffs in an amount equal to the sums of money which the defendant agreed to pay to plaintiffs. The plaintiffs pray for a temporary restraining order enjoining the defendant from selling or mortgaging the property, and that they be given judgments in the several amounts promised, with interest from June, 1927, and that it be found and declared that they have an equitable interest in the property equal to said amounts. Plaintiffs also ask that the property be sold, and out of the proceeds they he paid said amounts.

The praecipes annexed to the petitions directed that summons be indorsed with the amount claimed, with interest from July 1,1927, and for enforcement of the trust and order of sale, for which judgment will be taken. The defendant filed a general denial, and the appealability of the actions must be determined by the allegations of the pleadings.

When the cases came on for trial, the defendant demanded a trial by jury, which was refused. The court thereupon tried the actions without a jury, and found and adjudged in favor of the defendant, and that the petitions should he dismissed. The plaintiffs thereupon appealed.

This court is of the clear opinion that the main object of the actions was to recover judgments in the amounts which the defendant was averred £o have promised to pay to the plaintiffs, and that the prayer that a trust he fastened upon the property equal to the amount which the defendant was to pay is a mere incident to the main object of the actions, to wit, the recovery of personal judgments. We think the rule is well settled in Ohio that, where the equity side of the case is merely incidental to the issue of law, the case is not one in equity, and therefore not appealable. See 2 Ohio Jurisprudence, 166 to 169. See, also, Gowdy v. Roberts, 31 Ohio App., 33, 166 N. E., 141, and Toledo Pulp Plaster Co. v. Long, 10 Ohio App., 442.

The general finding and judgment for the defendant includes in law a finding and judgment that the defendant did not make the promise to pay, and that the plaintiffs were not entitled to recover judgments for the several amounts.

For the reasons given, the motion to dismiss the appeal will he granted in each case.

Appeal dismissed.

Lloyd and Williams, JJ., concur.  