
    No. 65
    LIVINGSTONE v. MOLDAVER
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5328.
    Decided Nov. 17, 1924.
    Published only in Ohio Law Abstract
    Attorneys—Turney and Sipe for Livingstone; Jos. Moldaver-for Moldaver, all of Cleveland.
   LEVINE, J.

Epitomized Opinion

Livingstone executed to Moldaver a note and mortgage. Moldaver as assignee filed suit in an action for money only on the note; in the Cuyahoga Common Pleas and took judgment on the note without paying for forclosnre of the mortgage. Moldaver’s demurrer to a petition of Livingstone was sustained. The note was cancelled by the Common Pleas Court and is no longer an existing obligation.

Livingstone brings the case to the Appeals bench asking for cancellation of the mortgage on the theory that Moldaver electing to sue on the note, thereby waived the mortgage security.

The Court of Appeals held that inasmuch as:

1. The Code does not require two remedies to be demanded in the same’ action, but permits . an action on a note to be joined with an action ■ to foreclose a mortgage.

2. The two actionns are, essentially differ- ; ent, one exhausting mortgage security,-and the • other affording a personal remedy, Spence v. Insurance Co. 40 OS. 520.

The Common Pleas will be affirmed in sustaining the demurrer and entering judgment as they did.  