
    Alsdorf v. Reed.
    
      Mortgage — Foreclosure—Attachment^-Right to trial by jury — Appeal-
    1. Where, in proceedings in attachment, the process of garnishment is served upon one who is indebtebted 16 the defendant upon notes secured by mortgage, and judgment is rendered for the plaintiff, the notes and mortgage are in legal effect assigned to the plaintiff, and he may maintain an action to foreclose the mortgage; and this is so whether the garnishee admits or denies the indebtedness in his answer; if it is denied, the plaintiff may proceed against him for an unsatisfactory answer and the foreclosure of the mortgage in the same action.
    2. Where, in such action, the prayer is for an ordinary decree of foreclosure and order of sale, the action is one for relief other than money only; and, although an issue of fact may be joined on a plea by the garnishee that he had paid the mortgage indebtedness before notice of garnishment was served on him, neither party is entitled to demand a jury for the trial of the issue, and either may appeal from a final judgment rendered against him in the action.
    (Decided March 27, 1888.)
    Error to the Circuit Court of Licking County.
    Tbe judgment sought to be reversed was one dismissing an appeal taken by Alsdorf from a judgment of the court of common pleas. The action in which the judgment of the common pleas was rendered was begun in that court by Alsdorf against John Reed, Isaac Vanatta, Florence Vanatta, his wife, Joseph Conrad and Joseph II. Conrad. Alsdorf alleged in his petition that on the 26th of May 1880, he commenced a suit in that court against Reed on a note that had been made to him by Reed; that he caused an order of attachment to issue therein against Reed, and process of garnishment to be served upon Vanatta and his wife; that Florence Vanatta, the wife, answered as garnishee, saying that she and her husband had made their notes to Reed; that she did not remember their amount, date or when payable; that they were secured by mortgage on the land they lived on; that her husband had told her that the notes were paid, and that she was satisfied that they had been paid. That afterwards, in April, 1882, he recovered in his action a judgment against Reed, for $2,015.80 and costs of suit to be satisfied from tbe moneys and credits garnisheed, including such money as may be owing by Florence Vanatta; that her answer as garnishee was not satisfactory ; that at the time she and her husband were served with notice, and when the judgment was rendered in his favor against Reed, she was indebted to Reed in the sum of $2,200 or more on the notes in her answer mentioned.
    It is futher averred.in the petition that on February 16, 1870, Reed sold and conveyed to Florence in fee 200 acres of land situated in said county, for $13,000 for which in part she made to Reed nine notes of $1000,00 each, dated September 1st, 1869, and payable, one in two years, and the others, one annually until 1879, with interest, and that she and her husband executed a mortgage upon the same lands to secure the notes, which was recorded, and a full description is given of the land. It is then averred that when she was served with notice as garnishee, the notes were all due, but not all paid; and that the condition of the mortgage is broken; and that the said Conrad had or claimed some interest in the land.
    The prayer of the petition is that an account may be taken of the amount remaining due upon the mortgage indebtedness of the Vanattas to Reed, and that an amount not exceeding the sum due on plaintiffs judgment may be ordered to be paid to him by said Florence Vanatta, and that in default of such payment the lands, or so much thereof as may be necessary, may be ordered sold for the payment of the same.
    The Vanattas answered, not denying the making of the notes and mortgage, but alleging that the notes had been paid. The Conrads answered, alleging that they had bought the lands from the Vanattas, and that Reed had released the mortgage. Alsdorf filed replies denying both the payment and the release.
    The issue of payment was submitted by the court to a jury, which found in favor of the defendants, on which the common pleas rendered judgment dismissing the action. The plaintiff appealed to the district court, and, on motion, the cause was dismissed by the circuit court on the ground that the case is not appealable. And this is the only question presented in the case for review.
    
      
      J. Buckingham and Dennis & Dennis, for plaintiff in error.
    
      J. W. Owens, Kibler & Kibler and Charles II. Follett, for defendants in error.
   Minshall, J.

The legal effect of the garnishment of a debtor of the defendant is, where judgment is rendered for thé plaintiff, to transfer the indebtedness of the garnishee to the plaintiff in the attachment so far as. the same may be necessary. to satisfy his judgment. Secor v. Witter, 39 Ohio St. 218. And as a security is always regarded as an incident to the debt,: it follows that where the indebtedness of the garnishee is secured by mortgage, the garnishment of the indebtedness carrieswith it the mortgage. Edwards v. Edwards, 24 Ohio St. 411. It is true that this was the case of a creditor’s bill, but no reason is perceived why a creditor should not be entitled to the securities held by his debtor in the one case as well as in the other. The garnishee may be insolvent, but his indebtedness to the plaintiff’s debtor may be amply secured by mortgage, and, for such reason, of the same value as if the debtor was entirely solvent; and it is this value that, as a part of the effects of the debtor, the creditor is entitled to have applied to the satisfaction of his claim.

So that, in this case, Alsdorf by the garnishment of the Vanatt-as, acquired the right to foreclose the mortgage they had executed to Eccd, unless the indebtedness had been paid before the process was served on them. This is what, as appears from his petition, Alsdorf sought to do. He set forth the proceedings in his suit in attachment against Eecd, the garnishment of the "Vanattas, and the judgment and an order in his favor, the execution and record of the mortgage, with a description of the property, and averred that the notes were all due but not all paid, and prayed for a foreclosure and an order of sale. He might have ignored the existence of the mortgage, and have asked for a personal judgment only against the garnishee, upon the averment that her answer was unsatisfactory; in other words, that, as a matter of fact, she was indebted to Eeed. In such case there would be but little room for doubt, that neither party could have appealed from the judgment that might have been rendered in the action. In saying this we ignore for the time being the coverture of Florence Vanatta. He has, however, omitted the pursuit of this remedy, and seeks a foreclosure of the mortgage and an order of sale. Prudential reasons may have, and no doubt did, determine him in taking this course. A judgment for money only would have simply placed him upon a footing with the general creditors of the garnishee, and so might have been of no avail. But in foreclosing the mortgage he succeeds to the rights of Reed, and is entitled to be paid according to the priority of the mortgage as a lien upon the land.

If instead of having acquired his right to foreclose the mortgage by process of garnishment, it had been assigned to him by Reed as a security for his debt, it will not be claimed that in a suit to foreclose it and for an order of sale, without a prayer for a personal judgment upon the notes, either party would have been entitled to a jury trial upon any issue of fact that might have been joined; and, as a consequence, neither could have appealed from any judgment against him in the action. Ladd v. James, 10 Ohio St. 437. But the right to appeal does not depend upon the manner in which the title to the mortgage may have been acquired; this right is determined by the nature of the relief that is sought and obtained. "When a money judgment will answer the demand of the plaintiff, is all that is sought and all that is obtained, either party is entitled to a jury trial upon any issue of fact joined in the action, and no appeal can be had from the judgment rendered. Dunn v. Kanmacher, 26 Ohio St. 497; Chapman v. Lee, 45 Ohio St. 356; Brundridge v. Goodlove, 30 Ohio St. 374; Averill Coal & Oil Co. v. Verner, 22 Ohio St. 372. Where, however, other relief is required, as the reformation of an instrument, preparatory to a recovery of damages for a breach of it, as was the case in Rowland v. Entrekin, 27 Ohio St. 47, and also in Ellsworth v. Holcomb, 28 Ohio St. 66; or, where an order of sale and a distribution of the fund is required as in the forclosure of a mortgage, the relief sought goes beyond a mere money judgment, and either party may appeal from the judgment against him. Ladd v. James, supra, and Fleming v. Kerkendall, 31 Ohio St. 568.

But, in this case the garnishee, Florence Yanatta, who appeared and answered, was a married woman. She seems to have been the principal in the indebtedness, as the land mortgaged had been sold and conveyed to her. No personal judgment could at that time have been rendered against her as garnishee; the most that could have been done as against her, would have been to make the amount found due a charge upon her separate estate, and have ordered it sold, unless paid. Phillips v. Graves, 20 Ohio St. 371. And this is another reason for holding that the action was appealable. Avery v. Vansickle, 35 Ohio St. 270. ~We think the circuit court erred in dismissing the appeal.

Judgment reversed and cause remanded for further proceedings.  