
    William M. Corry v. John Gaynor.
    1. In an action to recover a personal judgment for the amount of an assessment for the improvement of streets, it must appear that the defendant waa the owner of the lot assessed at the date of the assessment, and it is not sufficient to aver that he was such owner at the commencement of the suit.
    Under the act of February 19, 1864, (S. & S. 575,) a single action to enforce a lien, and also to recover the amount due, can only be sustained where the defendant is personally liable for the debt secured by the lien.
    3. Where the petition in an action to enforce a lien for an assessment alleges that the defendant is the owner of the lot assessed, but does not allege that he was such owner at the date of the assessment, and prays for the enforcement of the lien, and also for a personal judgment for the amount of the assessment, the case is not one in which the parties have a right to demand a trial by jury, but is one in which there is a right of appeal.
    Error to the district court of Hamilton county.
    The original action was brought by Gaynor against Corry to recover assessments made upon sundry lots for the improvement of a street. The petition sets forth all the facts necessary to show a valid assessment against the lots, giving separately the amount assessed against each. It alleges that the work was duly let to a contractor, who has fully completed it, and that the assessments so made have been assigned to the contractor, and by him assigned to Gaynor. The petition also avers that Corry is the owner of the lots; but it does not state who owned them at the date of the assessment, and it asks for a judgment against Corry for the aggregate amount of the several assessments, being $13,781.25, and in default of payment that the respective lots may be sold, each for the amount assessed against it.
    The answer denies the legality of the assessment, and also denies that the work has been completed according to contract.
    On hearing, the court found that said sum of $13,781.25 was due from Corry, as claimed in the petition, and that the plaintiff had in equity a lien upon the several lots named for the respective amounts so assessed against them. The court thereupon adjudged that Corry should pay said aggregate amount to Gaynor, and in default, that the lots be sold, as upon execution, for the satisfaction thereof.
    From this- judgment Corry appealed to the district court, where the appeal was dismissed as for want of jurisdiction. To l’everse the order of the district court dismissing the appeal, is the object of the present petition in error, the only question being whether the case is one in which the parties had the right of appeal.
    
      Alfred Yaffle for plaintiff in error :
    The improvement and assessments were made under the-act of May 7, 1869, (66 O. L. 149-286,) “To provide for the organization and government of municipal corporations and the sections specially referred to are 546, 547, 548 and 549, 543, 550.
    It is claimed that, upon the whole record, these cases are merely cases to enforce the assessment liens upon the lots, and to subject them to the payment thereof, and that the-personal judgments, in form, are to be construed as mere-findings of the amounts due. In other words, the cases sound in equity, not in law, and were, therefore, properly appealed.
    Counsel cited and commented upon Ladd v. James, 10 Ohio St. 437 ; S. & S. 575 ; Smith v. Anderson, 20 Ohio St. 76; Swan’s Code, Pl. & Pra. 41-44; Black. Tax Tit. 69, 70 ; S. & C. 1505, sec. 30.
    
      Mallon & Coffey for defendant in error:
    Where the pleadings make such a case that either party may, as a matter of right, demand a jury for the trial of Ms cause, then a second trial is the remedy provided for the-dissatisfied suitor. But where such a case is made out in the pleadings that neither party, as a matter of right, could demand a jury, then an appeal is the proper remedy.
    In other words, where an issue of fact is presented a seoond trial is the only remedy ; but if the issues raised are-merely of law, which the chancellor alone may decide, it is a proper case for an appeal.
    
      A single question of fact, for the trial of which either party might have demanded a jury, would make a case for a second trial, under a reasonable construction of this language. That there were many questions of fact raised in the pleadings, an examination of the papers will readily show.
    The case of Ladd v. James, (10 Ohio St. 437,) decides t 1. Where a jury trial may be had, a second trial, and not an appeal, is the proper remedy. 2. That, where neither party could demand a jury, an appeal, and not a second trial, affords the proper remedy. 3. That both a second trial and an appeal cannot co-exist in the same case. See, also, code, sec. 690, S. & C. 1155 : S. & S. 589.
    Our case was one proper for a jury, hence a second trial should have been demanded as affording the proper remedy.
    In 13 Ohio St. 574, and 7 Ohio St. 233, appeals improperly taken having been dismissed, held not error by the supreme court. To the same effect is 15 Ohio St. 460.
    In the case of Huber v. Cherry's Ex'rs, 17 Ohio St. 562, it was held that when an appeal is improperly taken, and the time for demanding a second trial has passed, it cannot be had, and that the party so mistaking his remedy, is without relief.
   Welch, C. J.

We think the court erred in dismissing the appeal. The action was not one in which the parties could demand a jury trial. It was an action under the statute to enforce a lien for assessments upon the lots. The facts stated in the petition are precisely those which it is necessary to set forth in such an action, — nothing less, nothing more. These facts are, the assessments, the performance of the work, and that Corry was, at the time of the commencement of the suit, the owner, or claimed to be the owner, of the lots. The fact that Corry was the owner of these lots at the date of the assessment, is not averred in the petition. Unless he was the owner at that date the statute does not make him liable for the assessment, or authorize an action against him personally. The petition contains a prayer for a personal judgment against Corry, as well as a prayer for a sale of the lots ; but there are no facts stated which will justify such a prayer, or warrant the court in rendering such a judgment. The only relief that could properly be granted, upon the facts stated in the petition, was a decree for the enforcement of the lien against the lots. The prayer for a personal judgment was mere surplusage and could not give character to the action. It was not an action to recover money, nor was it an action such as is authorized by the act of Peb. 19, 1864 (S. & S. 575), to enforce a lien and also to recover a personal judgment for the amount due. That act can apply only to a case where there is a personal liability for the money due, as well as a right to enforce the lien by which it is secured. It is the statement of facts, and not the prayer contained in the petition, which gives character to the action as being one in which the parties are or are not entitled to a jury trial, or an appeal. True, where the facts stated entitle the' plaintiff to elect between two remedies, to either of which the facts show him to be entitled, the prayer may determine the character of the action, because it is itself an election. The trouble here, however, is that there are no facts set forth entitling the plaintiff to pray for a personal judgment against Corry. Por aught that appears, some one else owned these lots at the time the assessment was made.

Judgment reversed, and cause remanded for further proceedings.

White, Day, McIlvaine and West, JJ., concurred.  