
    Grapes et al. v. Barbour et al.
    
      Foreclosure of mortgage — Also action for personal judgment— Mortgagor may appeal, when.
    
    If, in an action for the foreclosure of a mortgage and for a personal judgment for the money claimed to be due upon the demand which it secures, the journal entry in the court of common pleas shows that before the action is tried, the plaintiff, hy leave of court, withdraws the prayer for a personal judgment, and the court proceeds to find the amount due and to decree a foreclosure, the mortgagor may appeal to the circuit court.
    (Decided January 26, 1898.)
    Error to the Circuit Court of Seneca county.
    Anson C. Barbour brought an action in the court of common pleas against Selina A. Grapes and Frank* M. Grapes, counting in his first cause of action upon a promissory note alleged to have been executed by them to him, and in his second cause of action upon a mortgage alleged to have been executed by them to him upon lot No. 157, in the city of Tiffin, to secure the payment of said notes according to its terms.
    One Erwin Graves, was also joined as a defendant, the allegations as to him being, that he claimed to hold a prior mortgage upon said lot, and that his mortgage was also a lien upon lot No. 13, in said city. One Hiram W. Yeager was also joined as a defendant, the allegation as to him being, that he had purchased said lot No. 13, subject to the mortgage of Graves.
    As against Selina A., and Frank M. Grapes, the plaintiff prayed for a judgment on the note and for a foreclosure of the mortgage. As against the other defendants, he prayed that they be required by answer to set up their respective claims, and that the mortgage of Graves, if anything should be found due upon it, be paid out of the proceeds of lot No. 13.
    To the petition Selina A. and Prank M. Grapes, filed an answer and cross-petition, alleging that the note and mortgage had been signed by them and placed in the hands of one Gordon Barbour, to be by him delivered to the plaintiff after they had opportunity to test the condition and ascertain the value of a horse for which said note and mortgage were to be given, that they were by him delivered to the plaintiff in violation of said condition that the horse was unsound and not as represented to be by said plaintiff, and that a warranty of its soundness was false.
    They also alleged, that upon discovery of the unsoundness of the horse, they tendered it back and demanded said note and mortgage. They prayed that the note and mortgage be adjudged void, and that their title be quieted.
    The plaintiff replied, denying the allegations of the answer.
    After the filing of such answer, the following was entered upon the journal of the court:
    “This day came the parties with their attorneys, and on motion for that purpose, leave is granted to the said plaintiff to reply to the amended answer and cross-petition of the defendants, Selina A. Grapes and Prank M. Grape's, instanter, and which is accordingly done and thereupon on motion of the said plaintiff, leave is granted to him to withdraw from the petition the prayer therein contained for a personal judgment against the defendants, Selina A. Grapes and Prank M. Grapes, and which is done accordingly. Thereupon, this cause coming on for hearing, was submitted to the court upon the petition of the said plaintiff, the respective answers and cross-petitions of the defendants, Edwin Graves and Ira E. Strong, the amended answer and cross-petition of the defendants, Selina A. Grapes and Frank M. Grapes, the reply of the plaintiff thereto,” etc.
    The court thereupon found in favor of Barbour upon the issues joined, and that there was due to him from Selina A. and Frank M. Grapes, $156.10. It did not render a personal judgment against them for the amount so found due, hut ordered and decreed, that unless said sum should be paid by them within ten days, their equity of redemption in the mortgaged premises should be foreclosed, etc.
    Selina A. and Frank M. Grapes, gave notice of their intention to appeal the case to the circuit court and gave bond for that purpose. In the circuit court, Barbour moved for a dismissal of the appeal, upon the ground that either party was entitled to demand a jury upon the trial in the common pleas.
    The circuit court sustained the motion to dismiss the appeal, and a reversal of its order in that regard, is sought here.
    
      Brewer <& Brewer and A. SJcransewfky, for plaintiffs in error.
    The statement of the claims made will, we think, show clearly that the cause is appealable and'dlie circuit court erred in dismissing1 the appeal. 1
    
    First. Whilst Barbour, in his petition, asked for a personal judgment against Grapes and wife, he, on his motion, asked for and obtained leave to withdraw that claim, which was done before the hearing, leaving this cause strictly equitable, not only in substance, but in fact, and that journal entry was, of course, prepared by Barbour’s attorney.
    Second. The answer and cross-petition of Grapes and wife set out the execution and delivery of the note and mortgage to Gordon Barbour, the son, to be by him held until the return of A. C. Barbour, and if Grapes and Barbour could not then agree upon the pric.e of the horse, or if the horse then on trial by said Grapes should not prove sound in every particular, Grapes was to return the horse and Gordon Barbour was to redeliver the note and mortgage to Grapes, which condition was written on the back of the note.
    If the defense set up was found to be true, the right sought to be asserted by the plaintiff below did not exist, the note and mortgage would have no vitality, would have had to be cancelled and Grapes’ title quieted and the plaintiffs’ cause of action superseded or extinguished. This gave the plaintiffs in error the right of appeal. Bankin v. Hannan, 37 Ohio St., 113; Buckner v. Mears, 26 Ohio St., 514; Taylor v. Leith, 26 Ohio St., 426.
    ’When Barbour withdrew his claim and prayer for a personal judgment, it left simply a finding of the amount due upon the note with sale of mortgage premises, if Grapes failed in proof. This the entry shows was done and left this cause appealable. Ladd v. James, 10 Ohio St., 437.
    
      Lutes <& Lutes, for defendants in error.
    In order to determine whether the parties were entitled to a jury trial the court can look only to the issues made by the pleadings.
    
      The petition filed by Barbour in the common pleas sets forth two causes of action, separately stated and numbered. One upon the note, and one upon the mortgage securing the same, and asks for a personal judgment against the makers of the note for the money claimed to be due thereon, and for a foreclosure of the mortgage.
    That the ease thus made by the petition, upon any issue of fact therein stated, effecting the right to a judgment for the amount claimed to be due upon the note, is a case in which either party has the right to trial by jury, there can be no doubt, as it is especially made such by statute. Revised Statutes, section 5021; Ladd v. James et al., 10 Ohio St., 438; Scotty. Hexoett et al., 7 C. C., 5; 3 C. D., 635.
    And the fact that no personal judgment is insisted upon at the trial, or in fact taken, does not change the character of the action, or give a right of appeal. Keller v. Wenzell, 23 Ohio St., 579; Mitchell y. Drake, 7C. C., 308; 4 0. D., 609.
    If upon the case made in the petition either party is entitled to demand a trial by jury, appeal does not lie, though the defense may be a purely equitable one, unless upon the allegations of the answer, the defendant is entitled to affirmative relief. Smith v. Anderson, 20 Ohio St., 76; Coffin v. Marrata, 2 Bull, 273; 6 Dec. R., 379; Gunsaullus y. Pettit, 46 Ohio St., 27.
    That the journal of the court is not the place where issues are found, and cannot be looked to to determine what the issues are. The statute provides that the issues must be made by the pleadings. Revised Statutes, sections 5128 and 5129, and to the pleadings alone the court must look to determine what the issues are.
   Shauck, J.

Whether an appeal to the circuit court might be taken in this action, does not at all depend upon the prayer of the mortgagors that their title might be quieted as against the mortgage upon which the plaintiff below counted in his petition. That result would have been fully accomplished by a dismissal of the petition upon a finding that the mortgage had not been delivered; or, that it had been obtained by fraud, or without consideration. Such dismissal would have can-celled the apparent lien of the mortgage, leaving no occasion for a formal decree quieting title.

It is indispensable, under the provisions of section 5226, Revised Statutes, that an action, to be the subject of an appeal to ■ the circuit court, must be one in which the right to demand a jury does not exist. It is provided in section 5130, that “issues of fact arising in actions for the recovery of money only, or specific real or personal property shall be tried by a jury,” unless such trial be waived or a reference ordered. It is provided in section 5021, that “in an action to foreclose a mortgage a mortgage given to secure the payment of money, or to enforce a specific lien for money, the plaintiff may also ask in his petition, a judgment for the money claimed to be due; and such proceedings shall be had, and judgment rendered thereon, as in a civil action for the recovery of money only.” Counsel for the defendant in error, insist that notwithstanding the fact disclosed by the journal entry, that “on motion of the plaintiff leave is granted to him to withdraw from the petition the prayer therein contained, for a personal judgment against the defendants, Selina A. Grapes and Frank M. Grapes, and which is done accordingly,” that portion of the original prayer continues to be a part of the petition, making the case triable to a jury under the provisions of section 5021. This view of the subject is said to have been taken by the circuit court.

That issues are made by the pleadings, and that the action of the court is shown by the journal entries, are true as general propositions. Many exceptions, however, relating to matters occurring in the progress of trials are sanctioned by inveterate practice, and authorized by express provisions of the code. An offer, in open court to confess judgment, a consent to the reference of a cause, the dismissal of an action and notice of intention to appeal, though acts of a party, are evidenced by journal entry. So the withdrawal of one of several causes of action and the submission of the action upon the causes that remain, or the withdrawal of one of several defenses; or, the withdrawal of an answer or reply for the purpose of submission on demurrer to the petition or answer, are acts of the parties in open court, conclusively shown by entries upon the journal. The authority to withdraw a portion of the prayer, would seem to be embraced within the power to withdraw an entire cause of action.

Whether the cause is appealable is to be .determined from the nature of the issues when it was submitted in the court of common pleas. There being then no prayer for a personal judgment, it was an action for the foreclosure of a mortgage only; and in such action neither party is entitled to demand a jury.

Judgment reversed.  