
    Pierce, Assignee, v. Stewart.
    
      Action for specific performance — Equitable in its nature — Appeal lies from common pleas to circuit court.
    
    1. An action for specific performance is equitable in its nature, and neither party is entitled to a trial by jury.
    2. In such an action an appeal lies from the judgment ofithe court of common pleas to the circuit court.
    (Decided January 9, 1900.)
    Error to the Circuit Court of Butler County.
    The plaintiff in error, also plaintiff below, brought his action in the court of common pleas against the defendant below, and in his petition avers that as assignee of Gustave Steffe he obtained an order in the probate court to sell certain real estate belonging to the estate; that he duly offered the same for sale at public auction; that the defendant bid therefor the sum of |933.33; that the same’was struck off and sold to him for that sum; the sale reported to the court and duly confirmed and deed ordered, one-third to be paid in cash, one-third in one year, and one-third in two years, to be secured by mortgage on the premises sold. Plaintiff further avers that he has offered to execute and deliver a proper deed to defendant, and has demanded the cash payment, notes and mortgages for the deferred payments, and that defendant has refused to comply with the conditions of the sale, and has refused to concede that he has purchased the premises. The prayer of the petition is for judgment for the cash payment, that the defendant be required and ordered to execute and deliver his notes and mortgage for the deferred payments and for all proper relief in equity.
    A demurrer to this petition was overruled and leave granted to answer. The defendant, in his answer, admits the proceedings in the probate court down to and including the advertisement of the premises for sale, and denies all the other averments in the plaintiff’s petition, and denies that plaintiff is entitled to any judgment or other relief against him.
    Upon the trial of the cause to the court there was a finding in favor of the defendant and a dismissal of the petition. Plaintiff gave notice of appeal, and the court made an entry to the effect that it appeared that the plaintiff had already given bond as assignee of Gustave Steffe, and that, therefore, no appeal bond was required.
    In the circuit court a motion was made to dismiss the appeal for the reason that the cause was not appealable, that the circuit court had no jurisdiction, and that it did not appear that plaintiff had given bond as such assignee, and no appeal bond had been given in the case.
    The circuit court sustained the motion and dismissed the appeal, to all of which plaintiff excepted, and filed his petition in this court, seeking to reverse the judgment of the circuit court.
    
      Isaac M. Warwick; Belden & Fitton, and Morey, Andrews & Morey, for plaintiff in error.
    
      A. F. Hume and Stephen Crane, for defendant in error.
   Burket, J.

The entry sufficiently shows that plaintiff in error gave bond as assignee, and that being so, he is entitled to appeal without filing an appeal bond. Section 5228, Revised Statutes.

The remaining question is as to whether the case is appealable. The answer to this question depends upon the relief sought in the action actually prosecuted, and not upon relief which might have been had in other actions which might have been brought upon the same state of facts. It sometimes occurs that a petition may be framed upon the same state of facts so as to be triable either to a court or jury as the pleader may elect, and if in such cases the petition is framed so as to present an issue for the court, an appeal cannot be dismissed upon the ground that the issue might have been so framed as to be triable by a jury.

The punishment, as for contempt of court under Section 5397, Revised Statutes, is not the equivalent of specific performance, and cannot be made a substitute therefor. If that section had been invoked the cause of action for specific performance would not have been thereby merged, but would still have remained the same as if no action had been taken under that section.

The cause of action stated in the petition is for specific performance, and such an action involves more than a recovery of money. Before any money judgment can be rendered, the court must examine and weigh the equities of the case, and exercise its sound judicial discretion, and thereby determine whether or not specific performance should be decreed.

This weighing of equities, and the exercise of judicial discretion, are inseparable parts of such an action, and determine whether specific performance should be decreed or not; and if in favor of such performance, the judgment of the court is thereafter moulded so as to be applicable to the facts in each particular case. The equitable considerations and exercise of sound judicial discretion, are the body and substance of such an action, and a judgment for money or other relief in any particular case, is only an incident flowing from the determination of the body of the case. The body or substance of such an action is essentially equitable, because equities can be determined and judicial discretion exercised by a court only, and not by a jury.

The equitable character of the action is determined by the pleadings, and not by the judgment rendered. Hull v. Bell, 54 Ohio St., 228.

The nature of an action for specific performance is well stated in Williard v. Taylor, 8 Wallace 557; 3 Pomeroy’s Equity, p. 446; Tiffin v. Shawhan, 43 Ohio St., 178. The following is quoted from the syllabus in the latter case: “The duty of a court of equity to decree specific performance of a contract to convey real estate, cannot be determined by any fixed rule, but depends upon the peculiar facts and equitable considerations of each case, and rests in the sound discretion of the court, guided and regulated, .however, in the exercise of that discretion, as far as may be, by precedent and established practice.

“If the specific performance of such a contract would be harsh, oppressive, or inequitable in its consequences, or Avould leave the purchaser with a doubtful and unmarketable title, the court, in the exercise of its discretion, will refuse to decree its performance, as no man will be compelled to accept a doubtful title.”

In that case specific performance was sought and also a money judgment for the value of the real estate. In the case at bar specific performance is sought with a money judgment for one-third of the price, and notes and mortgage for the remaining two-thirds. To decree the giving of these notes and mortgage it is necessary to invoke the equitable powers of the court, and for that reason the action is triable by the court and not by a jury. In the case of Jones v. Booth, 38 Ohio St., 405, 408, an action by a vendor against a vendee for specific performance and purchase money, was held to be appealable.

It is urged that when the defendant refused to complete his purchase, that the whole amount of the purchase price became due, and could be recovered at once in an action at law. But even if this be so, it is a sufficient answer to say that the plaintiff did not elect to so treat the matter, and did not institute that kind of an action; and further, that an action for the recovery of the entire purchase price would still be a proceeding for specific performance, and the money judgment could not be recovered until after the court should pass upon the equity of the case and exercise its judicial discretion as is always required in such an action, and as was done in the case of Tiffin v. Shawhan, supra, and Jones v. Booth, supra.

The conclusion is that the action is appealable, and that the circuit court erred in dismissing the appeal. The judgment of the circuit court will therefore be reversed, the motion to dismiss the appeal overruled, and the cause remanded to the circuit court for further proceedings according to law.

Judgment reversed.  