
    M. N. Maginnis v. Caroline Schwab.
    1. Where, pursuant to the provisions of the 42d section of the code, a new-party is brought in and “ allowed to make himself defendant in the action, in lieu of the original defendant,” who, bringing the subject of the-action into, court, is discharged from liability on account thereof; the case is not thereby changed to a “ special proceeding,” but it remains-a “ civil action,” and must be proceeded in, between the remaining parties to the case, as a civil action-.
    2. Where such action was brought for the recovery of money, and the original defendant caused a third party, claiming the money, to be made defendant in his place, and, depositing the money in court, was discharged from liability therefor under said section of the code, and an issue of' fact was joined, between the plaintiff and the substituted defendant, material to the determination of the right of the parties to the money claimed by both — Held: That, the action being for the recovery of money only, either party had a right, under the code, to demand a trial of the issue by a jury, and that, therefore, under the statute, the case was one for a second trial in the same court, and not for appeal to th& District Court.
    
      Motion for leave to file a petition in error to the District Court of Hamilton county.
    The original action was brought in the Court of Common Pleas of Hamilton county, by the plaintiff against Walter Dixon, on a promissory note for $1,704.88. After the commencement of the suit, Dixon paid to the plaintiff $1,250, on the note, and filed an affidavit, under the 42d section of the code, stating that Caroline Schwab, wife of Peter Schwab, claimed the balance due on the note, and that he was ready to pay it as the court might direct. Thereupon the court ordered Dixon to pay the balance, $454.88, into court to abide its further order, and that Caroline and Peter Schwab be notified to become defendants as provided in said section of the code. Dixon paid the money into court, and was discharged from the action.
    The Schwabs appeared and filed an answer and cross-petition, stating that they entered into a written agreement with the plaintiff, by which he was to act as their counsel in resisting a suit to foreclose a mortgage on land of Caroline Schwab, and was to receive a contingent fee of one-half of any amount which should be deducted from the sum secured by the mortgage, which was claimed to be invalid, and, if not invalid as to the whole, that usurious interest was embraced in it; that, pending the foreclosure suit, Dixon purchased the land of the defendants and retained part of the price to indemnify himself against the mortgage ; that a settlement was effected between the Schwabs and the parties holding the mortgage, by which they agreed to deduct $6,808, from the amount due on the face of the mortgage; that the plaintiff agreed, as part of such settlement, to take one-half of $5,000, instead of one-half of the full amount deducted; but, in closing the transaction in behalf of the Schwabs, he took one-half of $6,808, in two notes of Dixon for $1,704.88 each, one payable to himself and the other to Alfred Yaple, his associate counsel, which, amounts were credited to Dixon. That, therefore, tbe sum of $454.88 embraced in tbe note in suit was due to the Schwabs, and not to the plaintiff.
    The plaintiff replied, admitting the written contract in relation to fees, but denied the other allegations of the answer and cross-petition setting up a change of the contract.
    Upon the trial, the Schwabs demanded a jury, which was resisted by the plaintiff; but the court allowed a jury trial, to which tbe plaintiff excepted.
    A verdict was rendered in favor of the plaintiff for $454.88. The Schwab’s demanded a second trial under the statute, and the court being of opinion that the ease was one in which a jury trial might be demanded, allowed a second trial, which resulted in a verdict in favor of Caroline Schwab.
    The plaintiff filed a motion in arrest of judgment, because the cause was not one for a second trial, and the court erred in allowing it. Themourt overruled the motion, and rendered judgment against the plaintiff for costs, and ordered the money in court to be paid to Caroline Schwab.
    To reverse the proceedings of the Court of Common Pleas, the plaintiff filed his petition in error in the District ■Court, but that court affirmed the judgment of the Common Pleas. He now asks leave to file his petition in error in ".this court to reverse the judgments of both the courts below.
    
      J. G. Mealy, for the motion :
    When Dixon had paid the money into court, and been 'discharged from the case, the action between the remaining parties was not for the recovery of the money. The claim of each of the parties is against Dixon for- the recovery of this money, and it is by virtue of the superiority of these respective claims against Dixon, that the court is to award the fund to the one or the other.
    Section 42 of the code, applied to this case, does not •mean that the action shall continue as it was before, an ¡action for the recovery of money, and that Mrs. Schwab -shall defend in Dixon’s place, but it does mean that she shall maintain her right to the fund in court by virtue of the superiority of her claim against Dixon.
    In construing section 42, the report of the code commissioners will afford some light as to their intention in framing this section. They say, on page 34 : “ Section 42 provides a remedy of interpleader.” Section 42 is substantially a re-enactment of section 122 of the New York code, and is borrowed from the English interpleader, act 1 and 2 William IY., ch. 58.
    In England, where error is taken in law cases, and an appeal in chancery proceedings, it has been held that proceedings under the interpleader act, 1 and 2 William IY., ch. 58, could not be reviewed on error as common-law cases, but that it was a special statutory interpleader, and that the judgment was final. King v. Simmons, 53 Eng. Com. Law, 289; 1 House of Lords, 754.
    The code interpleader (Code Com. Rep. 8) neither invokes the common law nor the chancery powers of the court, nor is the issue a common law or a chancery issue. The jurisdiction is a purely statutory one, as much ás a statutory partition, or other special statutory remedies mentioned in see. 604 of the code.
    There could be, then, neither second trial nor appeal in this case. Barger v. Cochran, 15 Ohio St. 460; Taylor v. Fitch, 12 Ohio St. 169.
    If this position is not correct, it is not, in any view, a common-law action, in which either party can demand a jury as a matter of right.
    1 and 2 William IY., ch. 58, is regarded as interpleader. Voorhies’ New York Code, sec. 122, p. 139 and note, p. 140; Shearman v. Patridge, 1 Abbott, 260; 11 How. 154; 4 Duer, 646; 15 Abbott, 254; see note to Seney’s new Code, sec. 42, p. 71; Starling v. Brown, 7 Bush. 164; Newman’s Kentucky Code, 207; Freeland v. Wilson, 18 Mo. 280.
    Prior to the adoption of the code, interpleader was always an equitable proceeding, and the jurisdiction was exclusively in chancery, and if the proceedings under section 42 is not to be regarded as a “special proceeding,” then tbe rights of the parties are to be determined under the equity jurisdiction of the court. Mitford’s Eq. Pl. 141; 2 Story’s Eq., secs. 800 to 806. And the court erred in rendering a common-law judgment for money when neither party asked it, and in allowing a second trial.
    
      Wright Simon, contra :
    The plaintiff, after Dixon was discharged and Mrs. Schwab was made defendant, did not file an amended or supplemental petition. The original petition for the recovery of money only still remained, and upon this plaintiff predicated his' claim, and upon this he must have recovered. Neither was the style of the action under the code changed.
    The case, as now presented, was entirely analogous to that when one is garnisheed, as having funds of the defendant, and pays it into court to await its decree.
    The question, under secs. 263 and 264 of the code, how issues of fact are to be tried, whether by court or jury, depends upon the kind of action, and not upon the issues growing out of it. The tribunal is not to be determined by the issue, but by the action.
    If the petition contains both legal and equitable causes of action, if it is for money only, all issues are triable by a jury. 2 Nash on Pl. and Pr. (N. S.) 963 and 964.
    In this case, the petition is upon a promissory note.
    The facts contained in the petition are to designate the tribunal by which tbe action is to be tried. Corry v. Gaynor, 21 Ohio St. 277; Smith v. Anderson, 20 Ohio St. 76; 1 Nash Pl. and Pr. (N. S.) 194.
    If the issues of fact in one of the three kinds of action specified in sec. 263 arise on equitable matter pleaded, as permitted under sec. 93 of the code, the issues are triable by a jury. This is the case also if the equitable matter is set up by way of defense and cross-petition, and affirmative relief even is asked of the court. See authorities last above cited.
    
      If, as insisted upon by counsel for the motion, the whole aspect of things became changed by the substitution of Peter and Caroline Schwab as defendants in the place of Dixon, under sec. 42 of the code, it seems to us that the very purposes of the statute would be violated, and instead of working a benefit, would produce greater disadvantages, and violations of right.
    The original action was for the recovery of money, and it can not be claimed that, before the substituted defendant has answered, the nature of the action has changed from a legal to an equitable one, for the petition is still the only pleading in thei case. The answer of the substituted defendant, then, even if it contain only an equitable defense, can not change the nature of the action.
    
      Smith v. Anderson, already referred to, is clearly against plaintiff’s theory of trusteeship.
    The object of statute (1 and 2 William IV., ch. 58, of which sec. 42 of the code is almost a copy) was to permit a person holding property, moneys, etc., claimed by two or more persons, after being sued by one of them, either in assumpsit, debt, detinue, or trover, to have the other substituted, as defendant, in his stead, in place of being compelled before suit to go into a court of equity and obtain a decree for them to interplead at law. Now, if this statutory jurisdiction was so conferred upon a court of law, must not all cases thus coming to the jurisdiction of a court of law be triable according to the rules of other like cases at law, in the absence of any other or different provision in the act as to the method of proceeding ? The intention certainly was not to change the common-law action of assumpsit, etc., into equitable suits. And, in England, the cases under the interpleader act are all authorities, so far as they go, in our favor. King v. Simmonds, 53 Eng. Com. Law; 1 House of Lords; cases cited by plaintiff’s counsel.
    The very point at issue in this case has been expressly decided in Gumm v. Tyrie, 6 Best & Smith, 298.
   Day, C. «J.

The decisive question in the ease is, whether either party had the right by law to demand a trial by jury. All the rulings complained of hinge upon the determination of this question.

It is claimed that after the Schwabs became defendants, the case ceased to be a civil action, and that it was then a statutory/ special proceeding merely, and that, therefore, neither party could of right demand a trial by jury.

The Schwabs were brought into the case under the provisions of the 42d section of the code. That section is as follows:

“Upon affidavit of a defendant before answer, in any action upon contract, or for the recovery of personal property, that some third party, without collusion with him, has or makes a claim to the subject of the action, and that he is ready to pay or dispose of the same, as the court may direct, the court may make an order for the safe keeping, or for the payment, or deposit in court, or delivery of the subject of the action, to such person as it may direct, and an order requiring such third party to appear in a reasonable time, and maintain or relinquish his claim against the defendant, if such third party being served with a copy of the order, by the sheriff, or such other person as the court may direct, fail to appear, the court may declare him barred of all claim in respect to the subject of the action against the defendant therein. If such third party appear, he shall be allowed to make himself defendant in the action, in lieu of the original defendant, who shall be discharged from all liability to either of the parties in respect to the subject of the action, upon his compliance with the order of the court for the payment, deposit, or delivery thereof.”

The ease, as between the original parties, was, undeniably, a civil action under the code; and it is provided by this section that such new party may “ make himself defendant in the action, in lieu of the original defendant.” It is very clear from this language, and the whole scope of the section, that it was not intended by this substitution of the party defendant, to change the nature of the case from a civil action to a mere special proceeding, thereby depriving the parties of the rights incident to a trial in a civil action. The action remains, though the parties may be .changed: The issues to be tried may remain essentially the same as they would have been had there been no change of parties to the record, and the plaintiff surely can not be deprived by the change of defendants of the rights of a party to a civil action merely because he is forced to contend with a new and, perhaps, more formidable antagonist.

But if the case be regarded as a civil action, it is claimed that it is one for appeal to the District Court, and not for a second trial in the same court as matter of right. This, question is made by the statute to depend upon the right of either party to demand a trial of the case by jury. Where a jury may of right be demanded to try the issues of fact joined in an action originating in the Court of Common Pleas, a second trial maybe had in the same 'court (S. & C. Stat. 1155); and appeals to the District Court may be taken in such cases when a trial by jury can not by law be demanded. S. & C. Stat. 1157. A trial by jury.may be demanded of issues of fact arising in actions for the recovery of money, or of specific real or personal property. Code, sec. 263.

The original action in this case was for the recovery of money only, and from beginning to end the plaintiff has sought nothing but the recovery of money. Had the same issues now in the case arisen upon substantially the same facts pleaded by the original defendant to defeat a recovery, it can not be doubted but that either party might have demanded a trial by jury. How is the case changed by the substitution of the new parties defendant ? All they sought, as against the plaintiff, was a defeat of his recovery by way of defense. Succeeding in that, they were entitled to have the money in the hands of the court paid over to them on motion. A prayer for that purpose in their answer was not a necessary part of their case against the plaintiff. They needed no judgment or decree for the money against him. Had the amount deposited in court been paid to the plaintiff, instead of defending against his right thereto, the defendants would have then been compelled to seek a judgment against him for the amount thus received by him for their use. But that wodld be essentially a civil action for the recovery of money, and would involve substantially the same issues now made in the ease by way of defense. The object sought by the action in either case is the recovery of money by one party or the other. Had the plaintiff received of Dixon the full amount of the note, and the action had been for the recovery of the sum now in controversy, as having been received for the use of the defendants, the issues being the same as now presented, beyond question, either party would have had the right to demand a jury trial. But the present case is in substance for the same thing, and there is no good reason why the parties are not as much entitled to have this case tried by a jury as they would have been in the case supposed.

The view we have taken of the case, both as to the character of the action after an affidavit is filed under the 42fi section of the code, and as to the right of the parties to demand a jury trial, is fortified by the fact that the provisions of the section extend to actions for the recovery of personal property, and, by the 43d section, are extended to actions brought against a sheriff, or other officers, for personal property taken on execution, or the proceeds of such property taken and sold by him. It is very clear that, in such cases, after the substitution of the new party, the case still remains a civil action, and, being for the recovery of money or specific personal property, issues of fact arising therein may of right be tried by a jury.

It follows that the plaintiff was not prejudiced by the rulings of the courts below.

Motion overruled.

McIlvaine, White, and Rex, JJ., concurring. Welch, J., not sitting.  