
    William Dunn and Richard Witt, partners under firm name of “Dunn & Witt,” v. Henry Kanmacher and John M. Stark, partners under firm name of “Kanmacher & Stark,” and the Board of Trustees of the Ohio Agricultural and Mechanical College.
    1. Where the facts constituting a cause of action entitle the party pleading them to no relief other than a personal judgment for money, neither party can appeal from the final judgment there.on, although other relief was prayed for in the pleading and granted by the court on the final trial.
    2. The remedy by “ an action of money had and rccioved,” as proscribed in section 5 of the mechanics’ lien act (S. & 0. 834), is the only remedy as between a sub-contractor and the owner, for the enforcement of rights secured under section 2 of the act.
    3. The issues of fact in such action must be tried by a jury, unless a jury trial be waived, and from the judgment therein there is no appeal.
    - Motion for leave to file a petition in error to reverse judgment of the District Court of Eranklin county.
    
      Kanmacher & Stark, having been employed by the board of trustees of the Ohio Agricultural and Mechanical College, by special contract, to furnish the materials for and perform the labor of constructing the college building, subcontracted, in writing, on the 23d of December, 1871, with Dunn & Witt, for the material and labor of the slating, galvanized iron, and tin work necessary in the completion of the building.
    On the 14th of November, 1873, Dunn & Witt, having performed the contract on their part, and claiming a balance of $l,958.67'to be due them from Kanmacher & Stark, under favor of section 2 of the mechanics’ lien act, filed with the board of trustees of the college an attested account of the amount and value of the work and labor performed and materials furnished in the construction of the college building, and remaining unpaid, under their contract with Kanmacher & Stark.
    Afterward, on the 23d day of May, 1874, Dunn & Witt commenced the original action in the Court of Common Pleas of Eranklin county against Kanmacher & Stark and the board of trustees of the college, alleging in their petition the contract between them and Kanmacher & Stark, its performance on their part, and the breach thereof by Kanmacher & Stark in neglecting and refusing to pay the balance of $1,958.67 due thereon; also the relation between the board of trustees and Kanmacher & Stark as builders and contractors; the filing of their attested account with the board; the retention by the board from Kanmacher & Stark of a sum of money sufficient to satisfy their claim; the unwillingness of the board to pay the same to the plaintiffs on account of notice from Kanmacher & Stark of their disagreement with amount of plaintiffs’ claim, and praying as follows : “ Plaintiffs, therefore, ask judgment against the said Kanmacher & Stark for the said sum of $1,958.67, with interest from the said 14th day of November, 1873, and that the said board of trustees, etc., be ordered to bring the said sum into court to abide the judgment and order thereof, and an order that the same be applied on the claim of plaintiffs and for other proper relief.”
    The hoard of trustees made default, but Kanmacher & Stark answered the petition, denying all indebtedness in excess of $864.27, and demanding damages by reason of the wrongful detention of their moneys in the hands of the board of trustees.
    The issues in the case were submitted to the court, neither party demanding a jury. On consideration, the court found the issues joined in favor of Kanmacher & Stark, and found the balance due the plaintiffs on the 14th of November, 1873, to be $864.27, and no more. The court also found that there was in the hands of the board of trustees, belonging to Kanmacher & Stark, at said date, the sum of $1,958.67, which sum, with interest, the board was •ordered to pay to the clerk of the court within thirty days, and in default thereof that execution issue therefor at the instance of either Dunn & Witt or Kanmacher & Stark; that of said sum the clerk pay the amount found due to plaintiffs, and the balance to Kanmacher & Stark; and it was also ordered and adjudged that the plaintiffs pay one-half the costs in the case, and that Kanmacher & Stark pay the other half thereof.
    Thereupon the plaintiffs gave notice of their intention to appeal to the District Court, and the court fixed the amount of their appeal bond at $200.
    The appeal having been entered in the District Court, the said court at its April term, 1876, on the motion of Kanmacher & Stark, dismissed the appeal, on the ground that the action was not one in which the plaintiff had the right to appeal from the Court of Common Pleas to the District Court.
    This proceeding is prosecuted to obtain a reversal of the order of District Court dismissing the appeal.
    
      L. J. Critehfield, for the motion :
    The statute (S. & S. 589) provides when an appeal is allowed.
    
      i The motion to dismiss the appeal in this case was based on the alleged ground that in this action the parties had the right by law to demand a trial by jury.
    On the subject of jury trial the court is referred to sections 263 and 264 of the code.
    This was an action under the mechanic’s lien law. 68 Ohio L. 107, sec. 2; S. & C. 834, secs. 3 and 5.
    The practical question is : Is the right or lien, provided for by these statutes, in the nature of an equitable right or lien, or is it simply a claim as for money at law ? Copeland v. Mantón, 22 Ohio St. 398; Superintendent, etc. v. Heath, 15 N. J. Eq. 22..
    - It is true, that from the petition may be abstracted statements of fact sufficient to constitute a cause of action for money against Kanmacher & Stark; but when the whole petition is taken together it is very apparent that while the ultimate purpose of the action, like most suits in equity, is for the recovery of money, the immediate purpose of the action is to obtain payment of a particular fund, appropriated, set apart under the mechanic’s lien law, and in the hands of the college trustees for the benefit of the plaintiffs, which the trustees refuse to pay.
    ,- The prayer of the petition does not determine the nature of the proceedings, or whether the remedy is at law or in equity; but the statements of the petitiou is what gives character to the action as being one in which the parties are or are not entitled to a jury trial or an appeal. Corry v. Gaynor, 21 Ohio St. 280.
    
      Charles E. Burr, also for the motion,
    urged substantially the same points as given above.
    
      Harrison, Olds § Marsh, contra:
    An issue of fact was joined upon the cause of action by the answer of Kanmacher & Stark.
    Either party to the issue so joined had the right to demand a trial of the same by a jury.
    Therefore there could be no appeal in the action.
    
      The action nncler the mechanic’s lien law is a legal, not an equitable cause of action. S. & C. 834. See. 5 of the mechanic’s lien law.
    But if we consider the cause of action against the board as equitable, and one for further relief strictly equitable in its nature, still the case is not appealable, for it is joined with a causé of action at law in which a personal judgment is sought and demanded against Kanmacher & Stark, and to which judgment the plaintiffs are entitled upon the factB stated in their petition. The case, therefore, falls within the ruling in the case of Ladd v. James, 10 Ohio St. 437.
    Under the code, both a legal and an equitable cause of action may be alleged, and both a legal and an equitable remedy obtained. And in this case the prayer for a general judgment against Kanmacher & Stark is a prayer for the recovery of the legal judgment to which the legal cause of action as set forth in the first division of the petition entitled the plaintiffs.
    It is plain that the plaintiffs set forth and rely upon a legal primary right, and upon that demand a remedy.against Kanmacher & Stark, which is purely legal. As ancillary to this right and remedy, the plaintiffs invoke the aid of a further remedy, based also, we think, upon a legal right, but which they assert is founded upon an equitable right. So far as the question before this court is concerned, it is wholly immaterial whether the same is legal or equitable. The material and controlling Consideration affecting the question now in hand, is that, upon the facts stated in the first division of the petition, a legal remedial right arose and was asserted against Kanmacher & Stark. ' Some of these facts were denied by. them in their answer, and thus an issue of facts was joined which either of the parties had the right to demand should be tried by a jury. Smith v. Anderson, 20 Ohio St. 76; Massie v. Stradfórd, 17 lb. 596; Taylor y. Leith, ante, 428
    If the allegations of the petition did not show unmistakably that the action was for the recovery of a personal judgment as well as for other "«lief, and the nature of the action upon the allegations were doubtful, the prayer for relief should settle the doubt. For, while the prayer for relief does not in general furnish a test or criterion by which to determine the nature of the action, yet it may be appealed to as the test by which the nature of the action can be determined in all cases where the pleader has, by his mode of alleging the facts, left the intention in doubt. Gillett v. Treganza, 13 Wis. 472 ; 1 Whitaker’s Pr. and PL, sec. 124; Meed v. Heed, 25 Ohio St. 422.
    It was not an action to enforce a lien. Sedgwick on Intp. of Stat. 402.
   McIlvaine, J.

Did the Distinct Court err in dismissing the appeal ?

In disposing of this question, it matters not whether the proceedings and judgments of the Court of Common Pleas were or were not erroneous. Without, therefore, approving or disapproving the practice had, and the orders made, in that court, we will look into its record solely for the purpose of ascertaining whether the action was such, that, under the statute, either party might appeal from the final judgment, order, or decree therein. The right of appeal, in this case, if it existed, was given by the following provision, in the fifth section of the “ act to relieve District Courts,” etc., as amended May 16, 1868 (S. & S. 589): “Appeal 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 jury trial.” “ Issues of fact, arising in actions for the recovery of money, . . . shall be tried by a jury, unless a jury trial is waived or a reference be ordered, as hereinafter provided.” Code, sec. 263. “ When the parties do not consent the court may, upon the application of either, or of its- own motion, direct a reference in any case in which the parties are not entitled, by the constitution of this state, to a trial by jury.” Code, sec. 282. “ The right of trial by jury shall be inviolate.” Const., art. 1, sec. 5. The right thus intended to be secured by the constitution, was the right of trial by jury as it was recognized by the common law; and within the right thus secured is the right of either party, in an action for the recovery of money only, to demand that the issues of fact therein be tried by a jury.

"Was the action below such, when considered in the light of the facts stated in the petition, as entitled the parties to demand a trial by jury? Or, in other words, without regare, to the prayer of the petition, which does not determine the nature of the cause of action stated in the petition, was it an action for the recovery of money only ?

As against Kanmacher & Stark, it must be conceded that the facts stated constituted a cause of .action for the recovery of money for work and labor and materials furnished under a special contract, and nothing more; and if the petition is to be regarded as tendering an issue to them, it is quite clear that the issue joined was triable by a jury on the demand of either party.

But it is contended by plaintiffs in error, that notwithstanding the prayer for a personal money judgment against Kanmacher & Stark (which should be treated as mere surplusage), that the real and only cause of action was against the board of trustees of the Ohio Agricultural and Mechanical College, and that the remedy sought as against them was the enforcement of a lien or trust; and that Kanmacher & Stark were properly made defendants, with the board, for the pui’pose of stating an account as against the board of trustees.

If it were conceded that the sole remedy sought by the plaintiffs below was against the board of trustees, and that the fact ascertained by the trial of the issue between the plaintiffs and Kanmacher & Stark was merely ancillary in determining the right of action which the plaintiffs sought to enforce against the board of trustees, the question would still remain : What was the nature of that right of action, and upon what was it founded ?

It was their right to have the money in the hands of the board of trustees applied to the payment of their claim against Kanmacher & Stark; and that right was founded solely on the statute entitled “ an act to create a lien in favor of mechanics, and others, in certain eases,” passed March 11, 1843, and the act amendatory of and supplementary thereto, passed May 1, 1871. "Without statutory aid, the claim of plaintiffs against the board of trustees would be wholly destitute of merit either at law or in equity; but under the statute, upon the filing with the board of trustees an attested account of the plaintiffs’ demand against Kanmacher & Stark, it became the duty of the board of trustees to retain out of subsequent payments due, or to become due to Kanmacher & Stark, the amount of plaintiffs’ account and for their benefit. To enforce the light thus secured by the plaintiffs against the board of trustees, the statute itself prescribes the remedy; and where a statute gives a new right, and also prescribes the remedy for its violation, the remedy so prescribed must be taken as exclusive, unless it appears from the statute that the legislature intended otherwise. The remedy prescribed by the statute is as follows: “And which amount” (retained) “ due may be recovered from the said owner by the creditor of said contractor, in an action of money had and received to the use of said creditor.” In such action at common law, the parties would have been entitled to demand a jury trial. The same under our constitution. Hence, as an action between the, plaintiffs and the board of trustees, neither party was entitled to an appeal from the final judgment therein.

The suggestion that, in an action like this, it is necessary to resort to a chancellor, for a statement of an account, before the relief intended by the statute can be granted, is wholly misconceived. The statute itself prescribes the mode in which the amount of damages shall be ascertained, so that a court of law may proceed to judgment, and the only judgment authorized is a personal money judgment. The apparent difficulty in the case grows out of the fact that, in the court below, the provisions of the statute were not used as landmarks ; but, when the proceeding is tested by the statute, the difficulty disappears. The plaintiff’s right was legal aud statutory; his remedy was legal and statutory. The form of the pleadings and the form of the judgment below do not affect the question before us. There was no right of appeal in the case.

Motion overruled.

Welch, C. J., White, Rex, and Gilmore, JJ., concurred.  