
    DOWELL v KAPLAN
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3964.
    Decided Dec 14, 1931
    Benton S. Oppenheimer, Canton, and Mr. S. Kelsch, for plaintiff.
    David N. Rosenbaum, Cincinnati, and Mr. Leo Weinberger, Cincinnati, for defendant.
   HAMILTON, J.

The trial court considered this allegation and the prayer as raising a chancery question, and proceeded to hear what it considered to be a chancery question, preliminary to the trial of the case on the merits.

The trial court found against the defendant on the question of reformation and cancellation and from that finding, defendant appeals to this court, without further trial on the merits.

Plaintiff moves to dismiss the appeal.

The oral arguments and the briefs filed are addressed to the question of the appealability of a chancery question incidentally raised in a law case, without proceeding to a final judgment on its merits.

In our opinion the question argued is purely academic in the case. The above quoted paragraph as a defense is in substance but the raising of a legal defense in a law case, to-wit: the defense of misrepresentation and fraud in procuring the acceptance of an offer of the contract of sale. If that defense is established at the trial it would require a verdict for the defendant in the law case.

That fraud or misrepresentation, was by inadvertence omitted from the contract is an incongruity.

While it is true the prayer asked, for the relief of reformation and cancellation, in considering the issue the prayer is no part of the petition. The character of the case must be determined from the allegations and facts pleaded.

The trial court should not have considered the allegation as raising a chancery question, and it should have heard the case and considered this allegation as a legal defense to the law case. Further, it must be borne in mind that the constitution gives this, court jurisdiction in “the trial of chancery cases” and not jurisdiction of chancery questions incidentally raised in a law case. See: Forest City Investment Co v Haas, 110 Oh St, 188.

The motion to dismiss the appeal is sustained.

ROSS, PJ, and CUSHING, J, concur.  