
    Thomas J. Rowland v. William W. Entrekin et al.
    1. In a civil action, where the facts stated in the petition, and the nature of the relief primarily demanded, are within the sole jurisdiction of a court of equity, neither party can, of right, demand that the issues of fact made by the pleadings touching the plaintiff's right to such relief, shall be tried by a jury; and, therefore, after final judgment, adverse to the plaintiff, in the court of common pleas, he may appeal such a case to the . district court.
    2. And this right of appeal is not affected by the fact that the plaintiff also demands a money\judgment, by way of damages to which he may incidentally be entitled, as a result of his obtaining the equitable relief sought.
    Error reserved in the District Court of Ross county.
    P. G. Smiih, with whom was S. L. Wallace, for defendants :
    Had either party to the action the right “ to demand a trial by jury ? ”
    The constitution of the state, article 1, section 5, and of the United States, 7th amendment, provides that “ the right of trial by jury shall be inviolate;” and that right is secured by tbe code, section 263, to parties in trials of all issues of fact arising in actions for the recovery of money, or of specific real or personal property. S. & C. 1020; McCrory v. Parks, 18 Ohio St. 1; Greason v. Keteltas, 17 N. Y. 498. The statute regulating second trials (S. & C. 1155) pi’ovides that—
    “A second trial may be demanded and had in any civil action which has beexx heretofore, or may be hereafter, instituted in any Court of Common Pleas in this state, in which said, court has original jurisdiction, and in which either pax’ty has the right by law to demand a txdal by juxy, and in which an issue of fact has been joined between the parties.”
    Appeals can be had only in such cases as whei’e the parties have not the xdght to demand a trial by jury. S. & C. 1157.
    In this ease, there is a clear and distinct issue of fact joined between the pax’ties, viz:
    That the premises alleged to have been leased were worth $5,000 per year for the two fix’st years of the term, and $4,500 per year for the two last years of the tex*m.
    These allegations the defendants deny, averring in their answer that the pimnises wex*e not worth any more than $2,000 per year. "When we get through the preliminaxies of this case, it is simply an action for the recovery of money. It is an action to recover the amount of damages alleged to have been sustained by the failure of the plaintiff to get possession of the premises that he claims he had leased. The action is clearly within the terms of section 263 of the code. To be sure, there is mox’e than one issue joined between the parties, but if there be a joinder of several “ causes of action, and an issue of fact as to either of them, which either party has a xdght to have tried by a juxy, a second trial may he demanded, and there can not be an appeal, though one or more of the causes of action would be such as would otherwise authoxdze an appeal.” Ladd v. James et al., 10 Ohio St. 437.
    On the right to a juxy trial, see Colman v. Dixon, 50 N. Y. 572; Davis v. Morris, 36 Ib. 569; Hudson v. Caryl, 44 Ib. 533; Barlow v. Scott, 24 Ib. 40; Smith v. Anderson, 20 Ohio St. 76; Sprague v. Childs, 16 Ib. 107; Massie v. Stradford, 17 Ib. 596.
   Scott, Chief Judge.

This case was reserved by the District Court of Ross county for the decision of the Supreme Court, on the question raised by the motion to dismiss the appeal, for the reason that the case made by the pleadings was one in which the parties had a right to a second trial in the Court of Common Pleas, and not a right of appeal to the District Court.

We are clearly'of opinion that this motion must be .overruled. The code of civil procedure gives a right of appeal from all final judgments, orders, or decrees in civil actions in which the parties have not the right by virtue of the laws of this state, to demand a trial by jury. Sec. 694.

And the cases in which the parties have a right to demand a trial by jury, are thus defined by section 263:

“ Issues of fact arising in actions for the recovery of money, or of specific, real or personal property, shall be tried by a jury, unless a jury trial is waived.”

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. He sought the reformation and perfecting of a lease defectively executed by the defendants; having but one witness, being unstamped, and without any acknowledgment.

These defects, originating, as he alleged, in the mistake of the parties, he sought to have corrected by a decree which would place him in the position of the holder of a valid lease. It is true he went further, and asked for the recovery of damages for the defendant’s violation of his fights as such lessee. But his right to recover damages depended wholly on his first obtaining the equitable relief sought. The case is to be distinguished from one in which a plaintiff unites in the same action causes for equitable relief, and an independent cause of action for the recovery of money only, in regard to which, if issues of fact be joined, a jury may of right be demanded for their trial.

Here, if the plaintiff failed to establish his right to be recognized as a lessee, his whole case was at an end.

On the trial of the issues of fact touching his right to this equitable relief, neither party had a right to demand a jury. Hence, when the court found against him upon the trial of those issues, and dismissed his petition, his remedy was by appeal, and not by second trial.

Motion to dismiss appeal overruled, and cause remanded to District Court for trial and judgment.'

Day, Whitman,'"Wright, and Johnson, JJ., concurred.  