
    Webb, Receiver, v. Stasel, Receiver
    
      Action against receiver — For allowance of claim — Not an action for money only, when — Either party may appeal, when.
    
    An action brought by leave of court against a receiver for the allowance of a claim to be paid in due course of administration of the property in his hands is not an action for money only, and neither party is entitled to a jury for the trial of issues of fact arising therein. It being a civil action within the original jurisdiction of the court of common pleas either party may under favor of Section 5226, Revised Statutes, appeal from the judgment of that court to the circuit court.
    (No. 10785
    Decided March 30, 1909.)
    Error to the Circuit Court of Licking county.
    Webb, as receiver of The Homestead Building and Savings Company, by leave of the court, brought suit against Stasel as receiver of The Newark Savings Bank Company for allowance of a claim for $22,464.83, being for what was alleged to be the balance of money deposited by the Building and Savings Company with the Savings Bank Company before either of the corporations became insolvent and passed into the hands of a receiver. In his petition the plaintiff alleged that he had presented his said claim to the defendant and requested him to allow it as a valid claim against the Savings Bank Company, but that the defendant had rejected it. The prayer of the petition was, that the defendant be ordered to allow the claim and pay the same in the course of the administration of the assets of the Savings Bank Company.
    The defendant answering denied an indebtedness to the full amount alleged by the plaintiff and pleaded certain matters by way of set-off against any balance which might be found to be due to the plaintiff. The reply denied certain of the allegations of the answer respecting the amount of the plaintiff’s claim and admitted one item alleged by the defendant by way of set-off.
    In the court of common pleas the cause was tried without the intervention of a jury, and a finding was made of the amount due the plaintiff, and the defendant was ordered to allow the claim of the plaintiff for the amount so found to be due and to reject it as to the residue. The amount so found to be due to the plaintiff not being satisfactory to him, he appealed the cause to the circuit court for a trial de novo. In the circuit court the defendant moved for a dismissal of the appeal on the ground that the action was not appealable and the motion was sustained. To reverse the order dismissing the appeal this petition in error is prosecuted.
    
      Messrs. Kibler & Montgomery, for plaintiff in error.
    While we have been unable to find any case determining the exact question which is now before the court, that is, whether an appeal will lie from an order directing a receiver to allow or reject a claim, yet we have found cases covering other officers bearing a trust capacity, and reasoning by analogy, we say that that rule applies in this case, and that a right of appeal does lie to the circuit court from an order of the common pleas court, such as this was, directing a receiver to reject a claim presented to him. Bank v. Little, Assignee, 4 C. C., 195; Chinn v. Trustees, 32 Ohio St., 236; Kennedy v. Thompson, Assignee, 3 C. C., 446; Meader, Trus
      
      tee v. Root, 2 O. Dec., 547, 11 C. C, 81; 1 Rockel on Probate Practice, Section 783; Gordon' v. Walton, Assignee, 3 C. C., 433; Smock v. Bouse, Admr., 12 C. C, 46; Harris v. Westervelt, 15 C. C, 534; Bank v. Bank, 127 N. Car., 432, 36 S. E. Rep. 39; State v. Railway Co., 45 S. Car., 464, 23 S. E. Rep., 380; Sections 6203 and 6407, Revised Statutes.
    Where an action is one for relief other than money only, neither party is entitled to demand a jury for the trial of the issue, and either may appeal from the final judgment rendered against him. Alsdorf v. Reed, 45 Ohio St., 653; Fleming v. Kerkendall, 31 Ohio St., 568.
    An action for the enforcement of a trust and for an account by the trustee, is not triable of right by a jury, but by the court. Carlisle et al. v. Foster, 10 Ohio St., 198; Bricker v. Elliott, 55 Ohio St., 577; Reed’s Adm’r v. Reed, 25 Ohio St., 422; MeAlpin Co. v. Finsterzvald, 57 Ohio St., 524.
    An action is not one for the recovery of money only within the purview of the statute, where, to administer full and complete relief therein, it is necessary to invoke the equity powers of the court to adjust the accounts between the parties. Black v. Boyd, 50 Ohio St., 46.
    Whether the issues in the case are triable by jury so that an appeal will not lie to the judgment rendered depends upon the nature and character of the relief sought in the action. Lange v. Lange, 69 Ohio St., 348; Raymond v. Raikvay Co., 57 Ohio St., 271; Pierce v. Stewart, 61 Ohio St., 423.
    That the ultimate relief sought in an action is the recovery of money is not conclusive that the entire action is one for the recovery of money only; where it is necessary to invoke the equity powers - of the court, an appeal may be taken from the judgment .or decree rendered. Chapman v. Lee, 45 Ohio St., 356; Fleming v. Kerkendall, 31 Ohio St., 568; Bricker v. Elliott, 55 Ohio St., 577.
    
      Mr. A. A. Stasel, for defendant in error.
    This is an action for money only. No other relief is sought and is therefore for a jury. Section 5226, Revised Statutes.
    The allowance of the claim of plaintiff by the court of common pleas would be of no other effect than a judgment of a jury, namely, that there is due from defendant to the plaintiff a certain sum of money.
    A creditor of a corporation may procure leave of court in the case in which the receiver is appointed to sue the receiver in an independent action, and in such event the separate action is an action at law, in case the cause of action is one at law and not equitable in its character. Olds v. Tucker, 35 Ohio St, 581.
   Shauck, J.

We are not favored with the view which conducted the judges of the circuit court to the conclusion that the case could not be brought to that court by an appeal from the judgment of the court of common pleas. Whether it could or not must be determined by the provisions of Section 5226, Revised Statutes. Under favor of that section such appeals may be taken in all civil actions within the original jurisdiction of the court of'common pleas when the right to demand a jury does not exist. It has long been familiar to counsel that the civil action of the code includes all such proceedings as prior to its enactment were regarded either as actions at law or suits in equity, and rights of action since authorized by statute unless the authorizing statute itself defines a mode of enforcing the right at variance from the procedure prescribed by the code. This action involved the rights of the creditors of the insolvent corporations which the receivers represented, and no reason is suggested for doubting that it is embraced within the phrase civil action. Not only was it within the original jurisdiction of the court of common pleas, but it was within its exclusive original jurisdiction.

But counsel for the defendant insists that it was an action at law) and that, therefore, either party had a right to demand a jury for the trial of the issues of fact which were joined in the pleadings, and that for that reason the action was not appeal-able. As we have had frequent occasion to point out, the appealability of an action cannot be determined by considering whether the principles upon which it proceeds are legal or equitable in their origin and nature. While it is true that all cases which were triable to a jury before the adoption of the present constitution are still so triable, the converse is not universally true. The general assembly has by the provisions of Section 5130, Revised Statutes, extended the right of trial by jury to issues of fact arising in actions for the recovery of money only, even though the action may be founded upon principles which are of equitable origin and nature.

While it is true that the demand which the plaintiff in error asserted in the court of common pleas would have been satisfied by the payment in money of the amount of his claim, he did not in the sense of the statute prosecute an action for the recovery of money only. Such actions, when prosecuted suecessfully, lead to a precise determination of an amount due from one party to the other. For that precise and definite amount a judgment is awarded. The judgment is enforced by the seizure upon execution of the property of the judgment debtor. The original petition of the plaintiff in the present case contained no allegation against the Savings Bank Company, which was alleged to be the debtor. Indeed, that company was not even joined as a defendant in the action. The prayer of the petition was not for a judgment, but for an order requiring the original defendant to allow the demand set up in the petition, the same to be paid in due course of the administration of the trust estate in his hands as receiver. The plaintiff upon the facts alleged was not entitled to a judgment for money in the legal sense of that phrase, for while the amount of his claim could be definitely determined, the amount which he should receive from the defendant receiver could not be, since that amount would depend upon the contingencies to arise in the course of the administration of the estate in his hands. With respect to its appealability, the case does not seem to differ from an action against the assignee of an insolvent debtor, or from any other suit for the right to participate in the distribution of a trust estate. In the view taken in the Willson Improvement Company v. Malone et al., 78 Ohio St., 232, it must be conceded that this case was not appealable because of the numerous items of the accounts set out in the claim of the plaintiff, but it is appealable because of the nature of the relief sought.

Judgment reversed.

Crew, C. J., Davis and Price, JJ., concur. Spear, J., dissents.  