
    No. 677
    SCHNEIDER v. COLLET, et.
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 785.
    Decided May 19, 1927.
    27. ACTION — 85. Appeals — Where defendant seeks, by answer and cross petition, to recover damages by way of offset to plaintiff’s claim and for personal judgment for excess, issue should be tried to jury, and action is not appealable.
    Motion to dismiss appeal.
    Appeal dismissed.
    First Publication of this Opinion
    Attorneys — Burkhart, Heald & Pickrel for Schneider; Estabrook, Finn & McKee for Col-let, et; all of Dayton.
   BY THE COURT.

A motion to dismiss the appeal in the above entitled case has been argued and submitted to the court. We have carefully considered the record and we are of the opinion that under the pleadings -the only litigated question in the court below was as to the cross petition. The cross petition, in our judgment, presented a case at law and not a case in equity. The defendant sought by answer and cross petition to recover damages by way of offset to the plaintiff’s claim, and for a personal judgment for the excess. This in our judgment, presents an issue at law to be tried to a jury. We are therefore of the opinion that the case was not appealable, and that the motion to dismiss the appeal should be sustained.

Appeal dismissed.

(Ferneding, Kunkle and Allread, JJ., concur.)  