
    Hillery M. Branch v. Samuel Dick.
    1. Upon the hearing of a case in equity in which accounts of the defendant against the plaintiff are set up as a defepse, and also as a cause of action in favor of the defendant against the plaintiff, if a decree is rendered in favor of the defendant on such accounts, in the exercise of incidental equity jurisdiction — a notice of intention to appeal all parts of the principal case proper, is a sufficient notice of intention to appeal the whole case ; as the inseparable incident is included in the principal.
    2. Where, in a proper case, the court fixes the amount of the appeal bond, at a sum less than has been decrewl to be paid by the appellant to the appellee, and bond is given accordingly, the appeal can not, for that reason, be dismissed. by the appellate court.
    Error to the district court of Darke county.
    The plaintiff in this case was plaintiff in the original action, which he commenced, in 1859, by petition filed in the court of common pleas of Darke county ; in which he alleged, that a deed of conveyance for a tract of land in Darke county, executed and delivered by him to the defendant, in June, 1845, though absolute on its face, was intended by the parties only as a mortgage, to secure the payment of a debt of $310 owing by him to the defendant; and that the defendant, by writtep agreement of same date, stipulated that said plaintiff should remain in possession of the premises, and upon payment of the amount of the debt with ten per cent, interest at any time within four years, that he, Dick, would reconvey said premir ses to the plaintiff.
    The object of the petition was to redeem, etc.; praying that an account might be taken ; that the amount due from the plaintiff to the defendant, and intended to be secured by said deed, might be ascertained; and that on payment of the same, the defendant should be ordered to reconvey, etc.
    Defendant Dick answered, alleging that the conveyance in question was made upon an absolute sale of the premises to him, in adjustment of previously existing debts, due to him, which were liens upon the land; and admitting that the arrangement contemplated and provided for giving the plaintiff the privilege of repurchasing, at any time within four years, upon the piayment of the debt then existing, and all further advances, with ten per cent, interest, etc.; and further setting up, that, after the expiration of four years, no part of the debt having been paid, and further advances having been made by him to the plaintiff, the parties had mutually treated the right to repurchase as abandoned, and ended. Defendant further claimed that there was due to him, from the plaintiff, at the date of the arrangement, and conveyance aforesaid, on all accounts, the sum of $523 66 ; upon which, annual interest being computed at ten per cent., and interest being calculated on such interest, from the time the same became due,, said debt, in June, 1859, had amounted to the sum of $1532 68. To this amount the defendant added, on account of rents and other indebtedness, accruing subsequently to the date of said conveyance, with interest thereon, sundry items, amounting to $582 21; making in all the sum of $2114 89, which he claimed to be justly payable to him by the plaintiff, as a condition precedent to reconveyance, even if the agreement in regard to reconveyance still remained in force. Defendant by way of “cross petition” thereupon prayed that said agreement for reconveyance might be ordered to be surrendered and canceled ; and that an account might be taken of the rents and other indebtedness, accruing to him from the plaintiff, since the date of said agreement; which, including a still further item of $50 88, on account of rents, he averred amounted to $633 09, and for which, with interest thereon from the commencement of the suit, he asked judgment against the plaintiff.
    The plaintiff replied, denying that the agreement for reconveyance had ever been abrogated by the parties, and averring that it had always been regarded as in full force. He 'denied that he was indebted to the defendant, at the date of the conveyance and agreement aforesaid, to an amount greater than $310, on which he denied his liability to pay ten per cent, interest, annually, or to have the same compounded. As to the other items of indebtedness claimed by the defendant, he denied having ever been indebted on several of them, and averred that the residue had been fully paid by his own, and his minor son’s work and labor for defendant, etc.
    On these pleadings, and the evidence and exhibits, the case came on to be heard; and the court found, that the deed of June, 1845, was intended by the parties to - be an absolute conveyance, and not a mortgage ; that the written agreement, of the same date, was not intended as a condition of defeasance to said deed, but was intended only as a reservation to the plaintiff of the right to repurchase the premises, within four years; and that the parties, by their subsequent conduct and transactions, had mutually treated said agreement as canceled, and ended. The court further found, that there was due to the defendant from the plaintiff, the sum of $240, upon the equitable and legal adjustment of the several matters set up in the pleadings of the parties. And thereupon the court ordered the cancellation of the agreement of June, 1845, and that the plaintiff should within thirty days surrender to Dick the possession of the premises ; and that his title thereto should be quieted; and also rendered a decree against the plaintiff, for the payment of said sum of $240, and costs of suit.
    The plaintiff gave notice of appeal, which was entered on the journal as follows : “And thereupon, the said plaintiff, as to that part or branch of said action arising, and tbe finding thereon, on the cross petition of the said Samuel Dick, replication, etc., thereto, of said Hillery M. Branch, finding and decreeing said deed of June 17, 1845, to be an absolute conveyance and purchase, and not a mortgage ; and that the said written agreement of June 17, 1845, was not intended by the said parties as a condition of defeasance to said deed, and said finding that it was only an agreement to repurchase said premises ; and the finding of the court in canceling said agreement of June 17, 1845, and forever quieting the title of said premises, in and to the said Samuel Dick, and ordering said Hillery M. Branch to surrender possession thereof to the said Samuel Dick; and all that part of the finding of said court, arising on the cross petition, and as to the title to said premises ; the said Hillery M. Branch gave notice of appeal to the district court; and the court fix the amount of the bond therefor, at $100, with security to be approved by the clerk of this court, conditioned according to law.”
    An appeal bond in the sum of $100, was duly executed by said Branch and two sureties, conditioned according to law, and seasonably filed in the office of the clerk of the district court, and the cause was docketed in that court.
    At the following term of the district court, Dick, by his counsel, moved the court “ to strike the cause from the docket and dismiss the appeal: 1. Because the said plaintiff undertakes to appeal a part of said case, when from the nature of the case, and the pleadings thereon, the same was not divisible. 2. Because the said defendant recovered a decree for the sum of $240, and costs, and the law requires bond for appeal in double the amount thereof; when, in point of fact, the plaintiff has given bond, in the sum of only one hundred dollars.”
    Upon the hearing of this motion, the cause was dismissed for want of jurisdiction, and the plaintiff excepted; and now asks the reversal of the order of the district court dismissing the appeal.
    
      Allen Meeker, and Caldwell $ Calkins, for plaintiff in error. *
    
      Wilson ‡ Knox, and Tilomas Milliicin, for defendant in error.
   Scott, J.

It is claimed by counsel for defendant Dick, that the action of the district court, in dismissing the plaintiff’s appeal, for want of jurisdiction, may be justified on either of three grounds : 1. The insufficiency of the amount of the appeal bond. 2. The imperfect and partial character of the notice of appeal, which had relation only to a part of an indivisible case. 3. That the cause was one proper for second trial, and not for appeal.

As to the first point: The statute regulating appeals to the district court, requires that in all cases in which the judgment or decree is personal against any party, for the payment of money only, the penalty 6f the appeal bond shall be double the amount of such judgment or decree; and that in all other cases, the court shall, at the time of the rendition of the judgment or decree, ascertain and fix the penalty of the appeal bond, at such reasonable amount, as shall, in the opinion of the court, be sufficient to cover any probable loss, damage or injury, which the other party or parties .may sustain by the delay, and the costs and damages which may be awarded in the appellate court. S. & O.’Stat. 1164, sec. 713.

The judgment or decree of the court of common pleas, in this case, was clearly not “for the payment of money only;” the whole case made by the plaintiff’s petition, and the main portion of the decree, had relation to the state of the title to certain lands, and alleged incumbrances thereon ; and it was, therefore, one of the “ other cases” in which it became the duty of the court rendering the decree “ to ascertain and fix ” the penalty of the appeal bond. That court did so ; it fixed the amount of the bond at $100; and the appellant gave bond accordingly. Whatever remedy the appellee may have for an injudicious or unreasonable exercise of the discretion of the court, in such case, he is certainly not entitled to have the appeal, for that reason, summarily dismissed, upon motion. The order of the court, in that behalf, so long as it remains in force, binds the parties; and the appellant, having complied with it, is not in default, nor guilty of any laches, and is not therefore to be summarily turned out of court.

The two other grounds, which are supposed to sustain the dismissal of the appeal, may be considered together.

The plaintiff’s cause of action, and the relief which he sought in his petition, were purely equitable. He asked to have a deed of conveyance, absolute on its face, declared a mere security for a debt; and to be allowed to redeem the premises, and discharge the incumbrance, by paying the debt. This was Ms whole case. The defendant answered; averring, that if the agreement to reconvey was to be construed as a condition of defeasance to the deed, and was still in force; yet that, by its terms, the plaintiff was only entitled to redeem, upon payment of many large items of' indebtedness, subsequently accruing, as well as the original debt and interest. These items, with their dates and amounts, he sets out fully; and so far, his answer is clearly pertinent, as bearing upon the terms of the condition of defeasance, and the amount of the lien. The plaintiff could not, therefore, demur to the introduction of these accounts and claims of the defendant — they were properly in the equitable case of the plaintiff, and no issues raised by the pleadings as to the amount of defendant’s lien, could give the parties a right to demand a trial by jury— or take away the right of appeal from the decree to be rendered by the court upon final healing. But the defendant went further; and denying that plaintiff’s conveyance was intended as a mortgage, and averring that the agreement to reconvey was a mere contract for repurchase and sale, which had long since been abandoned by the parties; he asked for a personal judgment against the plaintiff, upon these items of subsequent indebtedness, unconnected, as he claimed them to be, with the title to, or liens upon, the land in question. Had these accounts and claims of the defendant been introduced into the answer for this purpose alone, the plaintiff might clearly have demurred. Yiewed in this aspect, they could not in the slightest degree affect the plaintiff’s case, or his right to the relief which he sought. They could not constitute a setoff; for the plaintiff was asking for no money judgment, and asserting no claim to which a setoff could be made. They were not a proper counterclaim; for they are alleged to be independent transactions, not connected with the plaintiff’s cause of action. Still, these accounts and claims of the defendant, were properly in the case, as we have said, by way of answer to the plaintiff’s claim; and the court in passing upon them, and rendering a decree for the payment of a balance found due to the defendant, must be regarded as exercising a power incident to the equity jurisdiction which the plaintiff had invoked, over a subject matter properly brought within the sphere of that jurisdiction. The case throughout was one of equity' jurisdiction ; and the decree was therefore subject to appeal, and not to second trial.

The statute provides, that “ in all cases when the interest of any party desiring an appeal is separate and district from that of the other party or parties, and ho shall be desirous to appeal the part of the case in which he is interested, it shall be so allowed by the court,” etc. S. & C. Stat. 1166. I know of no other express provision of statute, authorizing the appeal of a part of a case — and that provision is certainly not applicable here, where there are but two parties, and each interested in the case throughout.

But, is it true that the appeal, or the notice of intention to appeal, in this case, applies only to a part of the case ? It is clear that the whole case is so connected in its several parts as not to be divisible. The plaintiff may, as is claimed, have intended to give notice of an intention to appeal only part of the case. But if so, we think he has succeeded in putting on the record, notice of intention to appeal the whole. He has specially particularized every part of the cause made in his petition, and the findings and decrees of the court made thereon ; from all which he gives notice of appeal. Every branch and part of the equity case proper, is mentioned and included in the notice of appeal; and though special mention is not made of the decree for the payment of $240 to the defendant, as the balance due him, on his several items of account; yet, as that decree, and the jurisdiction to render it, was incidental merely, arising from the equity jurisdiction over the principal case, it must, as an incident, accompany its principal to the appellate court, whose incidental jurisdiction is as perfect as that of the court below.

No injustice is done to the appellee by a liberal construction of the notice of appeal, as the terms of the appeal bond give equal security for the performance of every part of the decree which the appellate court may render in the case.

The order of the district court, dismissing the appeal, is re» versed; and the cause is remanded to the district court for hearing and decree.

Brinkerhoee, O J., and Ranney, Wilder and White, JJ., concurred.  