
    Edwin Giddings and Chauncey Giddings, Executors of Calvin Giddings, Deceased, v. Wendell Z. Barney, Catharine Barney and Watson Hubbard.
    A personal judgment can not be taken against a mortgagor, in an action to-foreclose a mortgage, unless the petition contains a prayer for such judgment. But the court may order an execution to issue for any balance after exhausting the proceeds of the mortgaged property.
    Motion for leave to file a petition in error to reverse the-judgment of tiie District Court of Erie county.
    Watson Hubbard brought an action in the court of common pleas of Erie county, to foreclose a mortgage given by the defendants, Wendell Barney and Catharine Barney, husband and wife. Calvin Giddings, since deceased, whose estate is now represented by the plaintiffs in error, Edwin and Chauncey Giddings, his executors, having a mortgage upou the same premises, was made a party defendant. ' In his answer he set up, by way of cross-petition, that he was the owner of a first mortgage upon the premises, given to secure purchase-money notes, both notes and mortgage being executed by Barney and wife, the title to the mortgaged premises being in the latter; and that he also held their other mortgage, on an undivided half of the same premises,, given to secure the payment of a note of $8,000, executed by Barney and wife; that said notes were due and unpaid.. He, thereupon, prayed “ that the amount and priority of liens be determined, and the amount of' his liens be paid, him out of the proceeds of sale of the said premises, and for other and further relief.”
    No issue was joined upon any of the allegations of the cross-petition! At the May term, 1875, of the court of common pleas, a personal judgment was rendered, on the $3,000 note, against Wendell and Catharine Barney, and an execution ordered. At the February term, 1876, on motion of Catharine, the personal judgment against her was vacated and set aside, and the executors of Giddings excepted. At the May term, 1876, the motion of Wendell Barney, to vacate the personal judgment against him was overruled, and he excepted. A petition in error was filed in the district court, by said executors, to reverse the order vacating the personal judgment against Catharine Barney, and a like petition was filed by Wendell Barney, to reverse the order of the common pleas, refusing to vacate the judgment against him. In the district court, the order vacating the judgment against Mrs. Barney was affirmed, and the order refusing to vacate the judgment .against Wendell Barney ivas reversed, and the judgment against him was vacated and set aside. Leave is now asked by ■said Edwin and Chauncey Giddings to file a petition in •erroi’ to reverse both judgments of the district court.
    J. 6r. Bigelow, for the motion.
    
      John M. Lemmon, contra.
   Boynton, J.

In the view we take of the principal question presented by the record, the others argued become unimportant. The cross-petition of Giddings only sought to ascertain the amount due on his mortgage security, and in case of its non-payment, to foreclose the equity of redemption, and secure a sale of the property mortgaged, and an application of the funds arising therefrom to the payment of his debt. There was no-prayer for a personal judgment against the makers of the mortgage notes. The action was one of purely equitable cognizance. For this reason, the question whether or not the “ act supplementary to the act to provide a code of civil procedure, and to prevent multiplicity of actions” (S. & S. 575), authorizes a defendant in a foreclosure suit to recover a money judgment against the mortgage debtor, upon a cross-petition, is outside the case. The right to proceed, in equity, to enforce the mortgage lien, and the right to proceed, at law, to collect the mortgage debt, are different but concurrent remedies.

The plaintiff in an action for forclosure, may, under the provisions of the statute above entitled,- avail himself of both remedies in the same action.

The very object of this provision was, in actions for the foreclosure of mortgages given to secure the payment of money, or in which a specific lien for money claimed to be ■due, is sought to be enforced, to enable a party to obtain a judgment - at law upon the secured debt, and a decree foreclosing the mortgage, or enforcing the lien, in the ■same action. But it was not intended to give both remedies where only one was pursued. Section 85 of the code requires the petition to contain a demand of the .relief to which the party supposes himself entitled. If a personal judgment is sought, as a part of the relief for which the action is prosecuted, the petition should demand it. We are not, however, to be understood as holding that in equity cases, the court may not give a personal, judgment, where equity requires it. McCrory v. Parks, 18 Ohio St. 1; Reed’s Adm’r v. Reed, 25 Ohio St. 422. Nor is it intended to deny the power of the court, in an action to foreclose a mortgage, where the court has acquired jurisdiction of the person of the mortgagor, to a'vyard execution for any balance due, after the proceeds of the sale of the mortgaged premises have been exhausted. Hamilton v. Jefferson, 13 Ohio, 427; Myres v. Hewett, 16 Ohio, 456; Moore v. Stark, 1 Ohio St. 373; Maholm v. Marshall, 29 Ohio St. 615. But it is error, to render a personal judgment against the mortgage debtor, in an action to foreclose a mortgage, unlesss the petition contains a prayer for such judgment.

It is no less error, without such, prayer, to render a judgment upon a cross-petition. The question, therefore, whether the improper rendition of the judgment was such an “irregularity in obtaining it,” as could be corrected at a subsequent term, by motion, under §§ 534 and 535 of the code, becomes immaterial. Eor if it be conceded—and we are not to be understood as intimating that it is—that the court was-wrong in vacating the judgment against Mrs. Barney, on motion, at a term subsequent to the one at which the judgment was rendered, and that the district court was wrong in reversing the order overruling the motion to vacate the judgment against Wendell Barney, the whole record being before the latter court, Barney and wife would have been entitled to a reversal, by that court, of the judgment improperly entered against them. ■ And this being all that was accomplished by the action of the two courts, and what was done being equivalent in legal effect to such reversal, there was no -error to the prejudice of the plaintiffs in error.

Leave refused.  