
    Raybuck v. Raybuck.
    
      Court of Appeals — Jurisdiction on appeal — Petition for divorce and cross-petition for divorce for fraudulent contract— Appeal does not lie even as chancery action for annulment.
    
    A brought an action for divorce from B for a cause arising subsequent to the marriage, and B filed a cross-petition asking for divorce on the ground of fraudulent contract; on hearing the court found against B on the cross-petition and granted A a divorce; no error proceeding was prosecuted, but B filed an appeal bond. Held, that even if the cross-petition stated a cause of action in chancery for annulment, the case was not appealable.
    (Decided April 29, 1927.)
    Appeal: Court of Appeals for Wayne county.
    On motion to dismiss.
    
      Mr. Walter J. Mougey, for the motion.
    
      Mr. O. L. Dally, contra.
    
   Washburn, P. J.

In the common pleas court of Wayne county, the plaintiff, Alta B. Raybuck, brought an action in divorce against her husband, Harry E. Raybuck, who filed an answer and cross-petition praying for divorce. Upon trial the court found that the allegations of the answer and cross-petition were untrue, and that plaintiff was entitled to a divorce, which was granted, and she was decreed the custody of the child and awarded alimony, payable weekly. A motion for a new trial was filed and overruled, and in due time the defendant brought the,case into this court by appeal. A motion to dismiss the appeal, on the ground that the case is not appealable, has been submitted.

It must be conceded that an action in divorce is not appealable. However, it is claimed in the present case that the cross-petition of defendant set forth a cause of action for annulment of the marriage contract, and that annulment, being a chancery action, is appealable. It is true that notwithstanding the statutes in reference to divorce, a court of chancery, in the exercise of its ordinary powers, will entertain jurisdiction to declare a purported marriage contract to be a nullity where there was mental or physical incapacity, fraud, force, nonage, a former spouse living, or other fundamental impediment to the union. A decree of nullity in a chancery action is founded on the theory that there never was a marriage contract, while a statutory decree of divorce concedes that a valid marriage did exist, but dissolves it.

In the cross-petition in the instant case the defendant claimed that the plaintiff represented to defendant that he was the father of her unborn child, and that he relied upon that representation, and that while some months before the marriage he had had sexual intercourse with the plaintiff, the child which was born after the marriage was not his child. The defendant did not ask to have the marriage relation annulled, nor did he make any claim in the court below for any relief except under the statute for divorce, and the claim that his cross-petition stated a chancery cause of action for annulment was not made until after the motion to dismiss the appeal was filed.

The cross-petition clearly set forth a claim for divorce on the statutory ground of fraudulent contract, and, assuming that the fraud alleged constituted a ground for the annulment of the marriage contract in equity, we have this situation: Plaintiff brings a statutory action for divorce, and the defendant files a cross-petition asking for a divorce on a statutory ground, which also constitutes a ground for annulment in chancery; both parties seek to terminate the marriage contract, one by having it dissolved and the other by having it dissolved or annulled; the defendant submits the case without asking the court to exercise its equitable jurisdiction to annul, and the court exercises only its statutory jurisdiction; the court finds against the defendant on the cross-petition and for the plaintiff on the petition and grants a divorce, which terminates the marriage contract; error is not prosecuted from that judgment, and, there being no appeal from the judgment terminating the marriage contract in accordance with the prayer of the petition, such judgment is final and binding on both parties.

Under such- circumstances, we hold that in determining the appealability of the action, the petition and cross-petition should be considered together and in connection with the acts of the parties in submitting the case, and when so considered, the cross-petition in this case constituted a statutory action for divorce and not a chancery action for annulment; that the refusal of the court to terminate the marriage contract- for the fraud alleged by the defendant was merely a refusal to grant the defendant a divorce upon the statutory ground; and that therefore neither party has a right to appeal from the judgment rendered in the court of common pleas.

The conclusion we have reached in this case is not in conflict with Kiriakis v. Fountas, 109 Ohio St., 553, 143 N. E., 129. The facts and circumstances and questions decided in that case are unlike those in the case at bar.

The motion to dismiss the appeal will therefore he granted.

Motion to dismiss allowed.

Funk and Pardee, JJ., concur.  