
    No. 1051
    SMITH, Exr. v. McCARTNEY
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1712.
    Decided Nov. 15, 1926
    Judges Shields, Houck & Lemert, of 8th Dist., sitting.
    85. APPEALS — Whether or not a case is an action at law or in equity is determinable by the pleadings.
    Attorneys — Warren L. Smith for pltf; Stahl & Price and L. E. Gorman for deft; all of Toledo.
   HOUCK, J.

This cause came into the Court of Appeals from the Lucas Common Pleas on appeal on behalf of the defendant. Smith filed a motion in which it was sought to dismiss the appeal upon the ground that the action is not one that is appealable. The Court of Appeals held:

1. Section 6 of Article IV of the Constitution of Ohio reads: — “The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus - - - - and appellate jurisdiction in -the trial of chancery cases, and to review, affirm, modify or reverse judgment - - - as may be provided by law.”
2. The question as to whether or not the case is appealable must be determined by the pleadings in the case. 9 OA. 456; 110 OS. 644.
3. Applying the rule of law laid down in the cases cited, to the pleadings, the present action is one at law and not in equity.

Motion sustained.

(Shields & Lemert, JJ., concur.)  