
    APPEALS.
    [Hamilton Circuit Court,
    February, 1893.]
    Campbell v. Eames et al.
    Defendant not Entitled to Appeae, When—
    Where plaintiff in his'first cause of action asks for a foreclosure of a mortgage given to secure a note, and in his second cause of action asks for a personal judgment against the defendant on the note : Held, that such defendant being entitled to have demanded a trial by jury, is not entitled to an appeal.
    Heard on Motion by plaintiff to dismiss appeal.
    
      Thos. F. Shay, Richard E. Werner and L. M. Hadden, for plaintiff.
    
      Wm. E. Bundy, for defendants.
   Smith, J.

The amended and supplemental petition in this case, on which trial was had in the court of common pleas, contained three causes of action. By the second, the plaintiff sought for a personal judgment against Fames on a note executed by the latter to Campbell for $500. The first was for a foreclosure of a mortgage given by Fames and wife to plaintiff to secure said note, and the third set up a judgment obtained by plaintiff against Eames, in another action, which it was claimed was a lien on the mortgaged premises. Henry Klein, L- H. Pummill and others were made parties defendant, as asserting liens on the same premises.

Fames and wife filed no answer, but Klein and Pummill filed answers and cross-petitions setting up their liens on the real estate mortgaged, and contesting the validity of the'mortgage of Campbell and claiming priority over the same. The question as to the consideration of the Campbell note was tried to a jury, on an issue out of chancery, which found in favor of Campbell, and the court by its decree found that his mortgage lien was a good one and had priority over the liens of Klein and Pummill. From this decree Klein, Pummill and Fames, severally and separately appealed.

We are of the opinion that Fames was not entitled to appeal. As to him, a personal judgment having been sought on one cause of action, and a decree of foreclosure of the mortgage given to secure the debt in another cause of action, and on the authority of Ladd v. James, 10 O. S., 438, and other cases, it must be held that Fames, being entitled to demand a trial by jury, he could not appeal.

The rules as to the other parties appealing is different. Campbell had no claim against them, on which he asked for a personal judgment against them. The controversy between them was of an equitable nature, viz: Whether the mortgage of Campbell was a subsisting lien on the property.” Bazell v. Belcher & Doral, 31 O. S., 572. As to. this neither of those parties was entitled to a trial by jury and could therefore appeal.

The motion as to Klein & Pummill will be overruled.  