
    Romanowski et al. v. Dziedzicki.
    (Decided April 28, 1930.)
    
      
      Mr. J. P. Mooney, for plaintiffs in error.
    
      Messrs. Bernon, Mulligan, Keeley & Le Fever, for defendant in error.
   Sullivan, J.

This cause is here on error from the common pleas court of Cuyahoga county, and we consider in connection therewith the appealability of the cause, and in order to reach both of these questions it becomes necessary to consider the main assignment of error, which is that under the allegations of the pleadings the defendants below, Mary Romanowski and Joe Romanowski, who are plaintiffs in error here, were entitled to a jury trial. The court below held against this contention, and exceptions were duly made to this ruling, after which the cause was tried upon its merits and decree rendered in favor of plaintiff below, Zygmund Dziedzicki, and the cross-petition of defendants below was ordered dismissed.

The authorities are uniform that the pleadings alone may determine the question whether the case is one in chancery or one in law.

In the case at bar, suit was commenced for judgment upon a note and the foreclosure of a mortgage, but at the trial of the case the plaintiff’s cause of action was reduced to the foreclosure of a mortgage. The cross-petition, to which we must look to determine the question as to whether defendants below were entitled to a jury, in connection with the other pleadings, seeks a judgment in damages, although in the prayer, which is no part of the petition, it asks for a reformation of the deed, out of which grows the claim for damages. To reform the deed, it would be necessary to allege the representations and the misrepresentations, and then and thereupon the actual facts as alleged in the cross-petition. This is not done, so that the use of the word “reformation” in the prayer is immaterial and cannot be considered for the reason noted. This leaves the cross-petitioners asking for a money judgment in damages by reason of the alleged misrepresentations as to the actual amount of land.

There is no issue made with reference to the plaintiff’s cause of action, which is the foreclosure of the mortgage. Consequently, the only issue is whether the cross-petitioners are entitled to damages as claimed in the cross-petition.

Even if it were admitted, for the sake of argument, that the issue as to the reformation of the contract was raised by the cross-petition,, yet, in the state of the pleadings, the question of damages would be the primary issue, because recovery could be had for damages under the pleadings, in our judgment, without respect to the question of reformation, and upon that question it is not amiss to note that it is very doubtful, under the description appearing in the record as to the property conveyed, whether the excess amount of land is imaginary, by reason of the exception to the area appearing in the description, but upon this point we do not declare, as it is immaterial to the primary point involved herein.

Thus it is our conclusion that under the pleadings, to which we are confined in the ascertainment of this question, there was a jury issue; that it was the primary issue, if not the solitary issue, and, therefore, in our judgment it was error to refuse the application of the cross-petitioners to have the cause tried to a jury.

Our position is corroborated by Section 11379, General Code, which is as follows:

“Issues of law must be tried by the court, unless referred as hereinafter provided. Issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived.”

"We see further corroboration in the following authority:

“If the plaintiff sets out in his petition an equitable cause of action, and no issue of fact is taken on the averments thereof; but the defendant sets up new matter in his answer constituting a legal cause of action, which, if established, will extinguish the case made in the petition, such legal cause of action is triable by jury.” Sallady v. Webb, 2 C. C., 553, 1 C. D., 638.

There are many other authorities of similar nature, and it is unnecessary to quote them, especially as the principle is elementary and is governed largely by the Code itself.

We have carefully read the brief filed by learned counsel for defendant in error, and have noted the authorities, but we do not think that they are controlling in the case at bar as against the holdings in Gunsaullus, Admr., v. Pettit, Admr., 46 Ohio St., 27, 17 N. E., 231; Lange v. Lange, 69 Ohio St., 346, 350, 69 N. E., 611, 612; Willson Improvement Co. v. Malone, 78 Ohio St., 232, 85 N. E., 51, and we quote excerpts from these authorities in their respective order, as follows:

“If the relief sought is a judgment for money only, the fact that, before the adoption of our reformed system of procedure, the proper remedy would have been by a suit in equity, does not affect the right of either party to a trial by jury upon any issue of fact made by the pleadings. ’ ’
“Whether a party, plaintiff or defendant, tenders issues of fact not triable to a jury as of right, must always be determined by regarding, not the principles which the court is required to consider and apply in determining the rights of the parties, but what decree it is required to enter upon its journal.”
“Within the meaning of the section, an action for money is an action for money only, unless there is sought some form of relief peculiar to courts of equity, and the action cannot be appealed from the common pleas to the circuit court. ’ ’

See, also, Chapman v. Lee, 45 Ohio St., 356, 13 N. E., 736.

In Taylor v. Brown, 92 Ohio St., 287, 110 N. E., 739, the first and second syllabi are particularly applicable, we think, to the case at bar:

“1. Whether an action is equitable or legal, and therefore triable to a jury, is determined by the issues presented and relief required at the time of the trial.
“2. Where recovery is sought against a fiduciary for fraud and deceit, in which a specific amount is claimed, and where no accounting is asked or required, the fact that the defendant occupies a fiduciary relation does not stamp the action as equitable; and in such case, if no other remedy cognizable in equity is asked and needed to give full and adequate relief, the action is legal, and not equitable, is for money only, and triable to a jury. ’ ’

As a final statement, however, we think that the real test of the question under discussion is that had the mortgage, which was sought to be foreclosed, been paid, then it would necessarily be conceded that there was nothing left except a suit for money, in line with the prayer of the cross-petition. That the cross-petitioners sought to file a cross-petition for damages instead of paying off the mortgage does not alter the merit of the test.

Holding these views, the judgment of the lower court is hereby reversed for the reasons named, and the appeal case is hereby dismissed on the ground that it is not appealable. The error case is remanded for further proceedings according to law.

Decree and judgment accordingly.

Vickery, P. J., and Levine, J., concur.  