
    No. 623
    PIEPMEIER v. MECK
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1527.
    Decided March 30, 1925
    923. PLEADING—Prayer for equitable relief and money judgment in same cause of action, or same petition, is not a violation of equitable maxim that, “He who seeks equity must do equity”.
    Attorneys—Conn and Holloway for Piep-meier; George C. Bryce for Meek; all of Toledo.
   WILLIAMS, J.

Louise Piepmeier brought an action in the Lucas Common Pleas against Charles Meek praying for the return of $2200 which had been turned over to Meek with the understanding that it was for the purpose of making a composition with Mrs. Piepmeier’s son-in-law. This was never done. A second cause of action alleged that a note for $3000 secured by a mortgage had been given to Piepmeier for security on the $2200. It was alleged that when the property upon which the mortgage was executed was sold on foreclosure, Meek used part of the $2200 in order to take it in his own name. Piepmeier prayed for conveyance of this property to her.

Meek fil.ed a general demurrer to the second cause of action and contended that it was insufficient because the facts alleged showed a violation of the maxim: “He who seeks equity must do equity”. It was claimed that Piep-meier sought to recover both the money Meek had in his possession, and the land in which Meek invested the money. Judgment was for Meek in the Common Pleas. Error was prosecuted and the Court of Appeals held:

1. We do not consider it a violation of the maxim to ask for money judgment for the full amount and the equitable relief prayed for, either in one petition or the same cause of action.

2. Upon trial there might have been a failure to establish the right to the equitable relief prayed for, and yet the right to recover a money judgment might have been established.

3. If Piepmeier was entitled to equitable relief she could not, however, recover the entire $2200; but merely that amount from which the amount paid in by Meek was deducted.

Judgment reversed and cause remanded.  