
    Raymond v. The T., St. L. & K. C. R. R. Company et al.
    
      Pleading — Effect of filing amended petition changing cause from an equitable to a legal action — Suit for possession of land, one for jury, notwithstanding prayer for injunction, etc., and same not appealable — Section 5779, Revised Statutes.
    
    1. Under our system of pleading, a plaintiff may ‘be permitted to substitute an amended petition in place of the original which may have the effect to change the form of action from an equitable to a legal action, the basis and the ultimate object of the action remaining the same. And if such change is made, the court, in determining the issues to be tried, will look wholly to the amended pleadings, disregarding the original, and the cause will thereafter be treated as a suit at law, and will proceed to trial and judgment as though it had been commenced as a legal action.
    2. The character of the new pleading in this respect will not be determined wholly by its title, although the title of “amended petition” should not be ignored. If the amended petition appears to have been filed not by way of addition merely, to the original petition, but appears also to contain a full embodiment of the plaintiff’s case, being on its face a statement of an entire cause of action, and, in substance, a substitute for the original, the filing of it by plaintiff will be regarded as implying an abandonment of the case made in the original petition, and as selecting this as the pleading on which he founds his suit, and the only petition which the court is to consider in determining the issues to be tried.
    3. Whether a case is one in equity or at law, does not depend upon the understanding of counsel, or of the trial court, nor upon the form of the judgment rendered, but upon the nature of the action as shown by the pleadings.
    4. A petition against a railroad company by one out of possession of real estate, which alleges title and right to possession of the land in plaintiff, and charges a wrongful entry and possession by defendant, and prays that the defendant may show his interest therein, that it may be adjudged null and void, and that judgment for the possession of the property may be awarded plaintiff, and defendant .enjoined from interfering therewith until compensation is made, states a case for the recovery of specific real property, notwithstanding the petition also contains allegations of threatened irreparable damage, as a ground for relief by perpetual injunction, and of a dispute as to boundary lines, as a ground for action by the court in settlement of such dispute, and of a dispute as to title, as a ground for asking that plaintiff’s title be quieted. Such action, being one in which either party may demand a jury, is not appealable.
    5. The nature of such action is not changed by an answer which pleads an estoppel merely as an equitable defense.
    6. Allegations of new matter of an equitable nature in the reply, do not change the nature of the action itself.
    7. Section 5779, Revised Statutes, gives a right of action to quiet title to one out of possession who claims an estate or interest in remainder or reversion in real property. It does not give such right to one out of possession who claims the entire estate.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Lucas county.
    The plaintiff’s action was commenced in the court of common pleas, April 22, 1892, by the filing of a petition alleging in substance, that the plaintiff was, and has been for more than twenty-one years, the owner of, and in undisputed possession of certain lots in the city of Toledo; that the defendant company, and the other defendants, its officers, with full knowledge of plaintiff’s ownership and possession, had entered upon said land and placed stakes, etc., thereon, and were proposing to forcibly and unlawfully enter upon and take possession of the lands under some pretended claim of title, which, if pursued, will cast a cloud upon the title of plaintiff, and do him irreparable injury. An injunction was asked restraining the defendants from entering upon the lands, and that, if there be any dispute as to the true boundary line that the same may be determined by direction of the court, and that plaintiff have all proper relief.
    An injunction was allowed on this petition.
    
      Two amendments followed more particularly defining the boundaries.
    May 25, 1894, an answer was filed taking issue as to the ownership of the land and as to possession, and setting up new matter by way of defense.
    A reply followed denying the averments of new matter.
    November 3, 1894, a supplemental petition was filed, making Samuel R. Galloway, receiver, a party, and on the same date an amendment to the reply, further replying to the answer, was filed.
    At the May term, 1895, leave was granted plaintiff on his application, to file an amended and supplemental petition, and to make R. B. F. Pierce, receiver, a party, and on June 3, 1895, a pleading entitled “Amended and Supplemental Petition” was filed, a synopsis of which is given in the opinion.
    October 10, following, was filed the answer of the company to the amended and supplemental petition filed June 3, 1895, in which it alleged in substance: 1. That it was an Ohio corporation owning a line of railway from Toledo tó East St. Louis, Illinois; that it was the owner of certain yards and tracks in Toledo; that said Pierce was the duly appointed, qualified and acting receiver, under appointment from the circuit court of the United States; that as .such he was in possession and control of and operating said railroad; that'at and about the time of the commencement of the action and subsequent thereto, the defendant company was in possession of the land claimed by plaintiff, and had theretofore constructed a fence thereon; that since the twenty-third day of January, 1895, said Pierce, receiver, had been, and still was, in the possession of said land; and the defendant denied each and every other allegation in the amended and supplemental petition contained. 2. Adverse possession for twenty-one years. 3. That the company and its grantors, being in possession, had made valuable improvements thereon for railroad purposes with full knowledge and consent of the then owner, who made no protest or objection, which conduct was acted upon by the company, and it would be greatly injured by allowing plaintiff now to establish any right or title to, or interest in said land. 4. Statute of limitation of twenty-one years. And asked to be hence dismissed with its costs.
    A reply to this answer was filed on the day of trial.
    At the October term, the plaintiff, having been granted leave to file iastanter his reply to this answer, and the reply (as above stated) having been filed, the cause thereupon came on to be heard and was submitted upon the pleadings and the evidence. And the court, being fully advised in the premises, and having heard the arguments of counsel, found for the defendants. It then ordered, adjudged and decreed, that the petition and the amended and supplemental petitions of plaintiff be dismissed, and that defendants go hence without day, and recover costs. Thereupon notice of appeal was given, amount of bond fixed, and bond duly given.
    In the circuit court the defendants interposed a motion to dismiss the appeal on the ground that the cause is not appealable. The circuit court sustained the motion, and dismissed the cause and the appeal. Reversal of this order of dismissal is now asked.
    
      
      Hurd, Brumback & Thatcher and Erwin P. Raymond, for plaintiff in error.
    The allegations of the amended and supplemental petition in general make the case one in which the equitable remedy sought is declarative and restorative. 1 Pomeroy, Eq. Juris., section 112.
    It will be remembered that plaintiff complains of various lots in the city being continuously entered upon by the defendant under a claim of title, which plaintiff claims it is estopped from asserting; and the action therefore is “to restrain the assertion of doubtful rights in a manner productive of irreparable injury, and to prevent vexatious, oppressive and repeated litigation. ” Culver v. Rogers, 33 Ohio St., 537; Story, Eq. Juris., section 928; Lembeck v. Nye, 47 Ohio St., 336.
    A trespass upon several distinct tracts of land may be enjoined in a single suit. Ohio Oil Co. v. Toledo F. & S. R. Co., 4 C. C. Rep., 210.
    If plaintiff should commence his action under section 6448-6450, Revised Statutes, and defendant should come into the probate court and claim title, grave questions would arise as to what authority the probate court would have to try the title of the real estate. It would fairly seem that such questions should be determined by a proceeding in equity and trial by the court (as here attempted) rather than in a trial by jury.
    Equity will take jurisdiction to prevent irreparable damage about to be done to the property of the plaintiff against his protest. Goodin v. Cin. & Whitewater Canal Co., 18 Ohio St., 169; Platt v. Pennsylvania Co., 43 Ohio St., 228.
    A property owner has his remedy in equity by injunction until compensation is paid for his property, provided he acts promptly and is not guilty of any laches by standing by and allowing the occupation of his premises without protest. Railroad Co. v. Robbins, 35 Ohio St., 531; Longworth v. Cincinnati, 48 Ohio St., 637; Culver v. Rogers, 33 Ohio St., 537; Gay v. New Orleans Pac. Ry. Co., 32 La. Ann., 277; Payne v. Kan. & A. Val. R. Co., 46 Fed., 546; Beach on Mod. Eq. Juris., section 721; Pomeroy’s Eq, Juris., page 387; Bispham’s Prin. of Eq., 53; Buckner v. Mear, 26 Ohio St., 514.
    Equity having- once acquired jurisdiction may retain it to give such full relief as will finally dispose of the controversy. Miller v. Stepper, 32 Mich., 194; Wallace v. Wallace, 63 Mich., 326.
    The amended and -supplemental petition further alleges that defendant railroad company is in the hands of a receiver under and by virtue of the orders of the United States circuit court. This allegation may well be considered as an averment of the insolvency of the railroad company.
    Where a trespasser is insolvent that alone will be ground for granting an injunction, though the injury might not otherwise be irreparable. Beach on Mod. Eq. Juris., section 722; Hillman v. Hurley, 82 Ky., 626; Thornton v. Roll, 118 Ill., 250.
    Under the original petition in the case there is no doubt but that a case was made under the statute to quiet title. Section 5779, Revised Statutes ; 2 Bates’ Pleading, 660.
    Aside from statute an action to quiet title or remove a cloud from title is purely one in equity. Pomeroy Eq. Juris., sections 138, 1395, 1398.
    After the action was begun, section 5779, Revised Statutes, was amended April 21,1893. 90 O. L., 226.
    The language of this amendment is somewhat ambiguous as to whether it covers any case brought by a person out of possession who has or claims an estate in the property.
    We believe the purpose of the legislature in this amendment was to give the right to a person to maintain such an action having any estate in real property, although out of possession. Pomeroy Eq. Juris., section 1396, and cases cited.
    We insist the action is one entirely equitable in character; but even regarding it as one in equity with incidental relief that could be obtained at law, it is appealable.
    The prayer alone does not determine whether an action is appealable, but it depends as well, upon the case made or facts stated in the petition. Reed v. Reed, 25 Ohio St., 422; Corry v. Gaynor, 21 Ohio St., 277.
    Where a petition makes out a case for equitable relief and incidental thereto a case for other relief that could be obtained at law, it will be regarded as an equity proceeding, and therefore appealable. Brown v. Kuhn, 40 Ohio St., 468; Rowland v. Entrekin, 27 Ohio St., 47; Ellsworth v. Holcomb, 28 Ohio St., 66; Alsdorf v. Reed, 45 Ohio St., 653; Massie v. Stradford, 27 Ohio St., 597.
    Where a separate defense in an answer makes out a case for equitable relief, which, if granted, would be a bar to an action at law asserted in the petition, the action will be appealable. Bugh v. Sturgeon, 41 Ohio St., 402; Dodgeworth v. Hoppel, 33 Ohio St., 16.
    Where an action was brought to enjoin waste, and also for an accounting for waste committed to which was added a claim to recover the possession of the land, Held, not a case for the jury and appealable. Jenks v. Langdon, 21 Ohio St., 362.
    
      Statutory rights of suit have the same right of appeal as any other, though the statute authorizing the suit is silent. Knoup v. Pickway Bank,1 Ohio St., 603. An action to quiet title is appealable. Miller v. Cincinnati, 5 C. C., 583.
    It is true that a controversy over a boundary line does not alone entitle a party to resort to equity. But it is also true that a court of equity will take cognizance of a case where there is something in the nature of his title or in the circumstances of the case, that brings it under an acknowledged head of equity jurisprudence. Wolf v. Scarborough, 2 Ohio St., 368; Bispham Prin. Eq., section 503; Story Eq. Juris., chap. II; Deveney v. Gallagher, 5 C. E. Green, 33; York v. Pilkington, 1 Atk., 330; Bute v. Glamorganshire Canal Co., 1 Phillips, 681.
    
      Brown & Geddes and Clarence Brown, for defendants in error.
    The original petition, filed April 22,1892, alleges that the defendants had unlawfully and forcibly entered upon the premises of plaintiff, and were about to enter upon and take possession of the same, under a pretended claim of title. The relief sought was:
    
      ■First — To enjoin defendants from entering and committing trespass upon lands owned by and in the possession of plaintiff; and
    
      Second — If there should be any dispute as to the boundary lines between plaintiff’s land and the canal bed (which is not alleged to be owned by the defendant) then to determine such boundary lines.
    The prayer of the amendment to the petition, was that plaintiff be adjudged to be the owner of said lots as aforesaid described and of the sizes and dimensions as shown on the Gower map in Lucas county records, and that his title be quieted.
    There was an amendment to the petition and amended petition, and a supplemental petition.
    The answer of the defendants to the pleadings was:
    
      First — A general denial.
    
      Second■ — Adverse possession for more than twenty-one years.
    
      Third — Estoppel, upon the ground that, having no knowledge that plaintiff claimed any right in the premises, the defendant, being in possession thereof, made valuable improvements thereon, with the knowledge and acquiescence of the owner, who knew, or had reason to know, that his acquiescence would be acted upon; and
    
      Fourth — Statute of limitations — ten years.
    The reply was a general denial, except that plaintiff admitted that he knew of his own title to the premises.
    The amendment to the reply, alleged that whatever right the defendant had or claimed to have, was under and by virtue of title derived from the city of Toledo, and denied that defendant thereby obtained any right to the premises claimed by plaintiff.
    Nor is it the fact that “no question was raised by the defendant below but that the case was one in equity.” On the contrary, the defendant has contended throughout that the action was not and could not be, with the allegations as to possession, one to quiet title, but was one to recover specific real property.
    It is true the cause was tried to the court without the intervention of a jury; but the trial by jury was waived, both parties submitting the case to the court upon the pleadings, the evidence and the arguments of counsel. Such admission is a waiver of the right to trial by a jury. Bonewitz v. Bonewitz, 50 Ohio St., 372.
    
    The question in this case is a simple one. Is this a civil action of which the court of common pleas had original jurisdiction and in which the right to demand a jury existed? If so, it was not appealable. Sections 5130, 5226, Revised Statutes.
    What is the character of this action? It is clearly to recover possession of real estate — the statutory action of ejectment. The title of. the parties is in controversy. The possessory right of each depends upon his title. No right can be determined in the case without first, and of necessity, passing upon the title. No relief can be granted to either party that does not depend upon the upholding of his title.
    The averments of the amended and supplemental petition clearly show the action to be in ejectment. The allegations material to this question are:
    1. The plaintiff claims to have an estate in, and to be the owner in fee simple of, the property in controversy.
    2. That the defendants claiming title to a portion of the same premises are unlawfully in possession thereof.
    3. Plaintiff prays that possession of said property may be awarded to him and the defendants enjoined from interfering therewith.
    The general and well recognized rule is that an injunction will be refused against a defendant in possession until the plaintiff’s title is established at law. 10 American & English Encyclopedia of Law, 806; 1 High on Injunctions, section 629; Stevens v. Erie R. R. Co., 6 C. E. Green, 259.
    
      But a single act is complained of, namely, the construction of a fence; but such a single act does not justify the interference of a court of equity, the relief at law being ample. Consequently rhe erection of a fence of wood upon part of a lot does not, per se, furnish sufficient claim to the aid of a court of equity by injunction. Herr v. Bierbower, 3 Md. Ch. Dec., 456.
    And the same doctrine is applicable, also, to the removal of a fence. Minnig’s Appeal, 82 Pa. St., 373; Jordan v. Lanier, 73 N. C., 90.
    A mere trespass will not be restrained by injunction. Ross v. Page, 6 Ohio St., 166; 1 High on Inj., sections 697-701.
    Where adequate relief may be had in the usual course of procedure at law, equity will not interpose by the extraordinary remedy of injunction. Spofford v. Bangor & B. R. R. Co., 66 Me., 51.
    Nor can the suit be maintained as a bill to establish. boundaries. Wolf v. Scarborough, 2 Ohio St., 362; 3 Pomeroy’s Eq. Jur., sections 1384-5.
    Nor can the suit be maintained as an action to quiet title by a person out of possession.
    This action is not appealable. In this case there is an issue of fact as to the title to the premises. Hall v. Bell, 54 Ohio St., 228.
    The title being in dispute and plaintiff being in possession, the gist of the. action is for the recovery of specific real property. Smith v. Anderson, 20 Ohio St., 76.
    The mere fact that a petition contains allegations which seem to invoke some of the equity powers of the court, will not necessarily change the character of the action. The purpose of the pleader, even, does not control. The legal effect of the acts pleaded determines the scope of the action. Chapman v. Lee, 45 Ohio St., 356.
    And although there may be joined in this action several causes of action, some of which are equitable, if either of them contains an issue of fact, upon which either party has a right to a trial by a jury, there can be no appeal, though one or more of the causes would be such as would otherwise authorize an appeal. Ladd v. James, 10 Ohio St., 438; Brundridge v. Goodlove, 30 Ohio St., 374; Bugh v. Sturgeon, 41 Ohio St., 402; Gill v. Pelkey, 54 Ohio St., 348.
   Spear, J.

The question whether the cause was or not appealable, depends upon whether the case in the court of common pleas was one in which a jury trial could of right been demanded. This depends upon the character of the case which was actually tried. It is conceded that upon the original pleadings, and the issues made as they stood prior to the filing of the amended and supplemental petition, June 3, 1895, the cause was one in equity, and triable to the court alone. It is contended by plaintiff in error, that the nature of the action was not changed at any stage of the controversy, but remained an action to establish a boundary line; to prevent multiplicity of suits; to prevent irreparable damage about to be done by an insolvent defendant to property of plaintiff against his protest; and to quiet title and remove a cloud from title, and so was a case in equity to the end; that this is abundantly shown by the pleadings, taken together, and the judgment rendered, and was so understood by all the parties and by the trial court, and that this is made clearly apparent by the reply filed Oct. 16, 1895, and the action of the court at the trial. Section 79, Revised Statutes, is cited as authorizing a proceeding to quiet title as here prayed. And it is true that the last reply avers, that “the main question at issue between plaintiff and defendant, is the boundary line of what is known as the bed of the Miami and Erie canal, so called.” Also, that since the commencement of the action, the company has been from time to time encroaching on the lots of plaintiff, to his great and irreparable injury, and that the action among other things, is to prevent vexatious and repeated litigation. And the reply does pray, “in addition to his prayer in the amended and supplemental petition, that the court will establish and fix the boundary line of the said Miami and Erie canal bed, and decree that the premises in question belong to this plaintiff.” It is true, also, that the cause was tried to the court without formal waiver of a jury, and that the court, in its journal entry, does adjudge and decree that the petition, as well as the amended and supplemental petition of the plaintiff, be dismissed, all which gives color to the claimed understanding. But the ultimate question is not, what was the understanding of counsel, or even of the trial court, as to the character of the issues joined, nor yet the form of the judgment rendered, but what, in law, was the nature of the action, and what the character of the issues, as shown by the pleadings which control the case. And this leads to an inquiry respecting the effect upon the case made in the original pleadings by the filing of the amended and supplemental petition of June 3,1895, and as to the case presented by that pleading.

That a plaintiff may substitute an amended petition in the place of the original, and change the form of action from an equitable action to a legal action, where the general identity of the transaction is maintained and the claim not substantially changed, admits of no question; nor is there doubt that if such change is made, the court, in determining the issues to be tried, will look wholly to the amended pleadings, disregarding the original, and the cause will thereafter be treated as a suit at law solely, and will proceed to trial and judgment as though it had been' commenced as a legal action.

The effect of the pleading filed June 3, 1895, upon the issues theretofore raised in the case, would not be conclusively determined by its title of “amended and supplemental petition,” nor by the expression “for amended and supplemental petition herein,” to be found in the first line, although such title and such statement should not be overlooked in ascertaining its effect, but if the new pleading appears to have been filed not by way of addition merely, to the original petition, and if it appears also to contain a full statement of the plaintiff’s case, being on its face a statement of an entire cause of action, and in substance a substitute for the original, the filing of it by the plaintiff will be regarded as implying an abandonment by him of the case made in the original petition and any additions thereto, and as selecting this as the pleading on which he founds his suit, and the only petition which the court is to consider in determining the issues to be tried. Such, we think, is the scope of this pleading, as must be apparent to any legal mind on an inspection of it.

What, then, is the character of the case which this pleading makes?

It starts with the- introductory phrase “for amended and supplemental petition herein” then follows a description of the defendant company, and an averment that it is the owner of a line of railway from Toledo to St. Louis, and now is, and for a long time heretofore has been, the owner of certain yards and tracks. operated by it in connection with its said line of railway in Toledo, and that one Pierce, is receiver, now in possession operating the road. It then avers that plaintiff claims an estate in, and is the owner in fee simple of four lots in the Port Lawrence division of Toledo, as laid out and platted, and in size as shown by the Gower & Walker maps of Toledo; that for a long time the defendant company, its predecessors and grantors, acquiesced in his ownership and possession “until up to about the time of the commencement of this action,” at which time the defendant company, well knowing of the rights and ownership of plaintiff, unlawfully and forcibly entered upon the lots, against the protest of plaintiff, and took possession of, and fenced in a large portion thereof5 and laid its railroad tracks thereon, without making any compensation to plaintiff, to-wit: a strip fifteen to thirty-five feet in width, next adjoining-the property of the company, being formerly the canal bed of the Miami and Erie canal, and the company and the receiver continue to hold possession, interfering with plaintiff’s rights and casting a cloud upon his title, to his great and irreparable damage. Then follows an averment that defendant’s only title is by virbueof a claimed purchase of the canal bed which is only eighty-eight and- one-half feet wide, although the defendant, at the commencement of the action claimed, and now claims, a greater width, and under said claim has forcibly entered upon and taken the said portion of plaintiff’s lots without compensation, and that the defendant’s claim is adverse to plaintiff’s rights. The prayer is that the defendants show their interest in the property; that it may be adjudged null and void; that judgment for the possession of said property may be awarded to the plaintiff, and defendant enjoined from interfering therewith until compensation has been made, and for other proper relief.

It must be manifest that the reference to the Gower & Walker map, and the statement of the company’s knowledge of and acquiescence in plaintiff’s ownership and possession, and of its title, and the width of the old canal bed, are but statements of evidence, and cannot aid the petition, and that the averment as to the possession of the company casting a cloud upon the plaintiff’s title to his irreparable damage, and that its claim is adverse to plaintiff’s rights, are simply legal conclusions. It is to be noted, also, as a significant fact, that while there is abundant claim of ownership in plaintiff, there is not a clear allegation of possession in him anywhere in the pleading. The allegation that defendant acquiesced in the ownership and possession of plaintiff “until up to about the time of the commencement-of the action, at which time the railroad company entered upon and took possession of, and fenced in a large portion thereof, and laid its tracks thereon,” if intended as a claim of possession in plaintiff at the time, is at best a dubious and equivocal averment, for the term “until up to about” would naturally imply a time preceding the date given. And it would seem that the draftsman could hardly have intended to aver possession in plaintiff at the commencement of the action, especially when it is remembered that a preliminary injunction was allowed at the filing of the first petition, and that there is no claim in this petition that the company acquired possession, or enlarged its possession, in violation of the court’s order. It follows, we think, conclusively, that at the commencement of the action, the company was in possession of the strip in controversy, and that the primary object sought, as shown by this petition, was to procure the judgment of a court ousting it from that possession. This construction is aided by the fact that the receiver is, by supplementary pleading, made a party. No allegation, save as to possession, is made against him, nor was he for any other matter than possession, a necessary party, having acquired whatever right he had during’ the pendency of the action.

Thus we have a case of a plaintiff out of possession making claim to title and possession of land, and praying a court to adjudge his title good and award him possession; in other words, praying to recover the land. All other relief sought is ancillary to this; it is relief which, if a proper case is made by the evidence, may follow, but cannot precede, judgment of possession. That is, the case made in the pleading is for possession of land, and then equitable relief to prevent the company interfering with that possession until compensation shall be made. The real and primary question was one of title. That settled in favor of the plaintiff, all other claims would follow and be determined as matters of relief in aid of the recovery, while, if settled against the plaintiff, his whole contention would fail. It seems to us that it would be an unnecessary waste of space to stop to demonstrate that this action, as made by the amended and supplemental petition, is, as matter of primary relief, neither a bill for an injunction to restrain, a continuing trespass, nor a bill to establish a boundary line between adjoining proprietors, nor an action to prevent a multiplicity of suits. Nor could it be maintained as an action to quiet title under section 5779, Revised Statutes. That section authorizes the bringing of an action “by a' person out of possession, having or claiming to have, an estate or interest in remainder or reversion in real property, against any person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interests of the parties therein.” The plaintiff does not claim to have an interest in remainder or reversion; he claims to have title to the entire estate, present as well as prospective.

Nor can it be reasonably claimed that the plaintiff’s case is changed, or in any way aided, by the answer. That pleading, besides general denial and plea of the statute of limitations, sets up an equitable defense by way of estoppel. But it is common knowledge that this may be done under our statutes, sections 5071 and 5782. It seems equally well settled that, unless a new, affirmative case is made by the defendant which requires a trial in advance of a trial on the plaintiff’s cause of action, and, if found in favor of the defendant, would wholly supersede plaintiff’s claim, the trial of the case made by the plaintiff is not affected. The equitable plea in this answer is a defense merely. If found in favor of the company, the effect would be simply to defeat a recovery. See Smith v. Anderson, 20 Ohio St., 76; Buckner v. Mear, 26 Ohio St., 514. Nor do the allegations of the reply change or aid the plaintiff’s ease in chief. For that we look to the petition, not to the reply. New matter therein set up for the first time cannot avail.

It results that the ease tried in the court of common pleas was an action for the recovery of specific real property. Section 5130, Revised Statutes, requires that causes of this nature- shall be tried by a jury unless a jury trial be waived. In such action no right of appeal exists, for, under section 5226, the right to appeal is limited to actions in which the right to demand a jury did not exist; and the tacit waiver of the right to demand a jury, and submission to the court, cannot change the character of the action. That, as we have already found, is to be determined by the nature of the action itself.

There was no error in dismissing the appeal.

Judgment affirmed.  