
    William Fleming v. John Kerkendall et al.
    In an action against the mortgagor and his grantee, for the foreclosure of a mortgage, the grantee may appeal from a decree against him, notwithstanding the petition asks a personal judgment against the mortgagor for the mortgage debt. The act of February 19, 1864 (S. & S. 575) only applies where the party against whom the lien is sought to be enforced is also personally liable for the debt secured by the lien.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Pickaway county.
    The original action was brought by William Fleming, the plaintiff in error, against John Fleming and John Kerkendall.
    
      The petition avers that John Fleming was indebted to the plaintiff'on a promissory note for $476 30, bearing date November 16,1857, executed by John to the plaintiff' ^ also, that the plaintiff, as surety for John, had been compelled to pay a promissory note to one "William Gallagher, the .amount of which is set out in the petition.
    The petition further avers that on the 16th day of November, 1857, the defendant, John Fleming, in order to ■secure the payment of 'the note first above .described, and to save the plaintiff’ harmless from liability on account of his suretyship on the second described note, executed and delivered to the plaintiff' a mortgage on the real estate described in the petition.
    Default on the part of the mortgagor is duly averred, .and the amount due the plaintiff stated.
    It is also averred that on the 14th day of March, 1873, the mortgaged premises were conveyed by John Fleming to John Kerkendall.
    The prayer of the petition is as follows: “ That said mortgage may be foreclosed, the premises ordered to be sold, and the proceeds applied to the payment of the debt, and execution awarded for the balance, and for a personal judgment against John Fleming.”
    The defendant, Fleming, made default. Kerkendall answered, setting up that the indebtedness secured by the mortgage had been paid off and discharged by John Fleming.
    On the trial, at the May term, 1877, the issue was found for the plaintiff; and, on default of payment of the amount found due, the mortgaged premises were ordered to be sold.
    From the judgment of the court of common pleas Kerkendall appealed to the district court.
    In the district court, the plaintiff moved to dismiss the appeal, oh the ground that the cáse was not appealable.
    The motion was overruled ; and the trial in the district •court resulted in a finding and j udgment in favor of Kerkendall.
    
      It is now assigned for error, that the district court erred' in not dismissing the appeal.
    
      P. C. Smith, B. II. Bostwick, and John A. Lutz, for the-motion,
    claimed that tshe issue made by the pleading was one which either party had a right to have tried by a jury, and hence there was no appeal. S. & S. 575, 589 ; sec. 263-of the Code ; Ladd v. James, 10 Ohio St. 437 ; Sprague v. Childs, 16 Ohio St. 107, 117 ; Keller v. Wenzel, 23 Ohio St. 579; Smith v. Anderson, 20 Ohio St. 76; Massie v. Stradford, 17 Ohio St. 596.
    When the facts are subject to the equities and dependent i hereon, then the case is appehlable. Rowland v.. Entrekin, 27 Ohio St. 47 ; Ellsworth v. Holcomb, 28 Ohio St. 66. But when the equities are subject to the determination of the facts (as in this case), then the converse of the proposition is true, and a trial by jury is demandable of right,, and no appeal can be had.
    
      C. J. Delaplane and Henry F. Page, contra,
    claimed that the action against Kerkendall was an equitable one; and before the code could only have been brought in chancery;. that the plaintiff) as well by the facts stated in his petition as by the nature of the relief which he primarily sought, invoked the equity powers of the court. Rowland v. Entrekin, 27 Ohio St. 47; Ellsworth v. Holcomb, 28 Ohio St. 66 ; and hence the action was appealable. Taylor v. Leith, 26 Ohio St. 425 ; Massie v. Stradford,Y! Ohio St. 596 ; Buckner v. Mear, 26 Ohio St. 514.
   White O. J.

There was no error in the refusal of the district court to dismiss the appeal.

. The statute provides that “ appeals may be taken from final judgments, orders and decrees in civil actions, in which the parties have not the right by law to demand a trial by jury.” S. & S. 589.

Actions in which the parties have the right by law to demand a trial by jury are “ actions for the recovery of money, or of specific real or personal property.” Code,, sec. 263.

In the present instance, the action is not for the recovery of money, although money is the ultimate object sought.

The action is not in the nature of a common law action; but in the nature of a bill in equity. Its primary object is the enforcement of the lien of tbe mortgage by subjecting the premises to sale to pay the mortgage debt.

.Kerkendall, the owner of the property, was not indebted to the plaintiff, and the only object of suit against him was-to foreclose his equity of redemption by the sale of the property.

The controversy between him and the plaintiff was purely of ah equitable nature: viz., whether the mortgage was still a subsisting lien on the property.

The prayer for a personal judgment against the mortgagor, whether allowable or not, was merely incidental to-the principal relief sought.

The plaintiff, however, claims that, under the act of February 19, 1864, the action must be regarded as an action for tbe recovery of money only, and, therefore, not appealable.

The act referred to is as follows :

“ That in all actions for the foreclosure of mortgages-given to secure the payment of money, or in which a specific lien for money claimed to be due, is sought to be enforced, 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 other civil actions for the recovery of money only.” S. & S. 575.

This statute is not applicable to the present case. The statute only applies where the party against whom the lien is sought to be enforced is also personally liable for the debt secured by the lien.

Leave refused.  