
    No. 62
    E. L. JONES v. J. S. GROSS
    Cuyahoga Court of Appeals
    No. 3786,
    decided Nov. 27, 1922
    MECHANICS’ LIENS — (1) Pleadings show action at law, not appealable — (2) Dismissal of cross-petition, not of avail, as pleadings show case of itself not appealable.
    Appeal from the Cuyahoga Court of Common Pleas
    Attorneys — Kerruish, Kerruish, Hartshorn & Spooner, for Jones; Ulmer & Berne and Smith, Olds & Smith, for Gross.
   Epitomized Opinion

The action in the Common Pleas was brought by the defendant, Gross, to foreclose a mechanics’ lien, with the usual alligations, and prayer that the premises be sold, and the proceeds be applied to the payment of the amount named. Jones, by a cross-petition, denied the allegations of the petition, and set up several defenses out of which issues of fact arise: The prayer of the cross-petition asked for a money judgment against G, and that the lien be foreclosed. The reply was a general denial. As the case thus came into the Court of Appeals, it was both by error and appeal, but the error was dismissed. This court held:

1. That the questions of fact before the court were districtly jury issues, and that a money judgment was asked for, show clearly the case to be an action at law and not appealable.

2. The fact that counsel for G offered to eliminate the cross-petition would not avail, for two reasons: First, the question of the amount due, and other material allegations of the petition are denied, which in itself raises a jury question; and, second, as at the time of the proceding to perfect the appeal, the case itself was not appealable under the state of the pleadings, and under the constitutional provision limiting appeals to chancery cases. The cases, Parker v. Gas Co., 9 OAP, 453; Lumber Co. v. Troxel, 10 CC, ns 83, 19 CD 585, aff’d in 76 OS 626, affirmed and followed.  