
    Norris et al. v. The Brotherhood of Railway Clerks National Bank of Cincinnati.
    (Decided April 4, 1932.)
    
      
      Mr. Charles II. Elston, for plaintiffs in error.
    
      Messrs. Nichols, Morrill, Wood, Marx & Ginter and Mr. Milton H. Schmidt, for defendant in error.
   Ross, P. J.

This is a proceeding in error from a judgment of the court of common pleas of Hamilton county, wherein the court instructed a verdict in favor of the plaintiff bank.

The petition states a cause of action in ejectment under Section 11903, General Code.

The answer admits the formal allegations of the petition, that the defendants Elizabeth J. and Lyman E. Norris are in possession of the real property described in the petition, and denies the legal estate and right to possession in the plaintiff. The answer further alleges that the deed to plaintiff was given for a certain purpose, and was to be used only under certain conditions; that the deed was not used for such purposes, nor under the conditions agreed upon by the parties; and that said deed was void and was without consideration.

It is further alleged that a suit to cancel such deed and for a return of the property has been filed.

The answer, as is permitted by Section 11904, General Code, sets up an equitable defense, but asks for no affirmative equitable relief in this action.

The reply alleges matter in answer to the equitable defense set up in the answer.

This action was therefore one at law, and, under the Code, Section 11379, the case was triable to a jury, unless waived. Lust v. Farmers’ Bank & Savings Co., 114 Ohio St., 312, 320, 151 N. E., 189; Raymond v. T., St. L. & K. C. R. R. Co., 57 Ohio St., 271, 288, 48 N. E., 1093; Smith v. Anderson, 20 Ohio St., 76, 81; 15 Ohio Jurisprudence, 209, Section 46.

A jury was not waived, but as appears in the judgment entry the court instructed a verdict for the plaintiff, which was the equivalent of denying the defendants a jury trial. This constituted prejudicial and reversible error. Newnam’s Lessee v. City of Cincinnati, 18 Ohio, 323, 333; 15 Ohio Jurisprudence, 211, Section 48.

It was the duty of the trial court to pass upon the equitable defense and then submit the case to the jury with proper instructions upon all the issues in the case.

The judgment of the court of common, pleas will be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Hamilton and Cushing, JJ., concur.  