
    John Keller and Victoria Keller v. Lewis Wenzell.
    1. Where the plaintiff, in an action to foreclose a mortgage, demands in his petition a judgment against the defendant for the amount due from him upon the mortgage, and issues of fact are joined therein, the cause is one for second trial and not for appeal, although no such personal judgment is finally entered, but only a judgment for sale of the mortgaged premises.
    2. Where a second trial in such case was demanded by the defendant and disallowed by the court, and the demandant then appealed to the District Court, and his appeal was there dismissed on the ground that the case was one for second trial, but'without any order being made by the District Court, or asked for by the appellant, for remanding the same to the Common Pleas: Held, that the failure of the District Court to make such order remanding the cause was not error for which its judgment dismissing the appeal should be reversed.
    Motion for leave to file a petition in error from Clermont county.
    This was an action for the foreclosure of a mortgage, and to recover a judgment for the amount of the mortgage debt. Issues of fact were joined in the cause, and the court, on hearing, decided them in favor of the plaintiff and rendered a decree for sale of the premises, but gave no judgment for recovery of the money.
    The defendant demanded a second trial, which the court refused to allow, on the ground that the case was one for appeal and not for second trial. The defendant thereupon appealed the cause to the District Court, where, on motion of the appellee, the appeal was dismissed on the ground that the case was one for a second trial .and not for appeal But the District Court made no order remanding the cause to the Common Pleas, nor did the appellant ask for any such order. It is now claimed that the District Court erred to the prejudice of the appellant: 1. Because the case was one for appeal and not for second trial; and, 2. Because, if the case was one for second trial, and not for appeal, the court should have remanded it to the Common Pleas.
    
      Nichols & Davis and G. L. Swing, for the motion,
    cited S. & C. 1159, secs. 705, 706; Potter, Receiver, etc. v. Bunnell, 20 Ohio St. 160, 161.
   By the Court.

We think neither of these grounds of error can be maintained.

Under the statute of February 19, 1864 (S. & S. 575), this was clearly an action in which a jury trial was demandable of right. The plaintiff “ asked, in his petition, a judgment for the money claimed to be due,” and issues of fact touching his right to such judgment were joined.. The fact that no personal judgment was finally taken by the plaintiff for the money due does not vary the case. The plaintiff’s petition showed a right to such a judgment,, and issue was taken on the case thus made.

As to the second ground of error, namely, that the cause-was not ordered to be remanded to the Common Pleas, we think it is enough to say that the plaintiff asked for no such order. In simply dismissing the appeal there was no-error. The judgment of the court was right so far as it went. The appellant might, if he chose, waive his right to have the cause remanded for a second trial, or to enter-on the journal his demand for such second trial after the cause had been so remanded. It is by no means clear that the District Court may not yet make the order remanding the cause. "Whether that can be done, or whether a certified copy of the.judgment of the District Court, showing ;that the appeal was dismissed on the ground that the appellant was entitled to a second trial, would not be all that is necessary to enable the Common Pleas to proceed in the cause, we need not now decide. It is enough to say that we see no error in the judgment of the District Court ^dismissing the appeal.

Motion overruled.  