
    Kochs, Admx., v. Kochs et al.
    (Decided March 15, 1935.)
    
      Mr. Joseph L. Meenan and Mr. Walter S. Page, for plaintiff.
    
      Mr. T. M. Potter, for defendants.
   Montgomery, J.

This cause comes before this court upon motion to dismiss the appeal perfected from the Court of Common Pleas of Perry county. The petition filed by Ann Kochs, as administratrix of the estate of Catherine Noon, deceased, is labeled “petition for a declaratory judgment and determination of rights and legal relations and other relief.” In this petition it is averred that the plaintiff administratrix had, in the Court of Common Pleas of Perry, county, obtained a judgment against W. D. Foraker, as executor of the estate of Bernard Noon, for wrongful conversion of the personal estate of Catherine Noon, deceased, which judgment was afterwards affirmed by this court. It is averred that said administratrix has filed her final account in the Probate Court and is desirous of making distribution of the assets in her hands; that the defendant Foraker, as executor, has set up certain claims against the funds, and that the plaintiff, as administratrix, has incurred certain expenses which she desires to pay. The prayer of the petition is that the court instruct her as to- her rights, and instruct her to pay herself, as heir of Catherine Noon, the entire balance in her hands, and to refuse to pay any part to the said W. D. Foraker, as executor.

To this petition an answer was filed by Foraker, as executor, in which he admits the judgment against him set forth in the petition, except that, by general denial, he denies that the former action was one for conversion, and avers that the same was for the recovery of one-half of $8,000, formerly a certificate of deposit, and $500, formerly in a Liberty bond. He further avers that upon said judgment being affirmed, and a motion filed in the Supreme Court being overruled, he paid said amount to the plaintiff, as administratrix. He avers in his cross-petition that his decedent, as the widower of Catherine Noon, deceased, is entitled, under the laws of Ohio, to certain exemptions, and is entitled to a distributive share in her estate. He denies the right of the plaintiff to pay the other expenses alleged to have been incurred by her. His answer further contains a prayer that he be decreed to have an interest in the estate under the provisions of Sections 10654 and 8592 of the General Code, and that the plaintiff be ordered to pay to him the amount to which he is entitled as widower, and also his distributive share.

A demurrer filed to this answer was sustained, and Foraker, executor, not desiring to plead further, final judgment was rendered for the plaintiff, and, from that order, an appeal was perfected to this court, to which appeal the motion to dismiss is now directed.

The Uniform Declaratory Judgments Act, Sections 12102-1 to 12102-16, General Code, does not establish or change any substantive rights. Section 12102-12 states: ‘ * This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations.”

Section 12102-7, General Code, provides that “all orders, judgments and decrees under this act may be reviewed as other orders, judgments and decrees.” In other words, if the cause of action were equitable in its nature, so that an appeal might be perfected from the judgment of the lower court, such an appeal might be had if the action were brought under this declaratory judgment act. If the cause of action were not equitable in its nature, then error might be prosecuted. This act simply broadens the remedies, but it does not, and could not, change the essential nature of an action itself.

As stated by this court in the case of Diebold Safe & Lock Co. v. Fulton, Supt. of Banks, 46 Ohio App., 127, 129, 187 N. E., 784: “The clear absence of a right to trial by jury upon such issue is not conclusive or fully determinative. Neither is the fact that the exact situation arises by virtue of a statutory enactment conclusive, or altogether controlling.”

In that decision this court cited, and here cites again, the case of Wagner v. Armstrong, 93 Ohio St., 443, 450, 113 N. E., 397, wherein this proposition was stated: “Appealable cases, therefore, must be such cases as are now recognized as equitable in their nature.” And attention is directed to the case of Harper & Kirschten Shoe Co. v. S. & B. Shoe Co., 16 Ohio App., 387, the first paragraph of the syllabus of which is: “ The question of the appealability of a case to the court of appeals under Section 6, Article IV of the Constitution, does not depend upon whether or not the right and remedy are created by statute, but upon whether the basic principle of the statute is equitable in character and based upon some equitable-doctrine.”

We fail to see how it can be claimed that the issues raised in the instant case are equitable in their nature. They have to do with the distribution of estates, a matter purely statutory, and with no equitable principle involved. Such a statute has been in existence in Ohio a great many years, first as Revised Statute G202, later as Section 10857 of the General Code, and now as Section 10504-66, General Code.

Some concern has been given us by the holding of the Supreme Court in the case of Swing et al., Exrs., v. Townsend, 24 Ohio St., 1. In that case it was held that an action by executors against devisees, distributees and heirs, asking for the construction of a will and determination of the duties of executors thereunder, was appealable to the District Court.

The appealability to the Circuit Court was questioned, but not decided — apparently not having been urged — in the case of Silk, Admr., v. Merry, 13 C. D., 218, 3 C. C. (N. S.), 91.

It seems to us that the different constitutional provisions in effect at the time of the Supreme Court decision in the Swing v. Townsend case, and at the present time, warrant, and in fact make mandatory, a different conclusion in the instant case.

Article IY, Section 6 of the Constitution of Ohio, in effect at the time of the Swing decision, was as follows: “The district court shall have like original jurisdiction with the supreme court, and such appellate jurisdiction as may be provided by law.” The same language was incorporated in the amendment to this Article when the Circuit Court was established. However, Article IY, Section 6 of the Constitution of 1912, by which we are governed in this case, provides: “The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases”.

This constitutional provision of course is controlling and cannot be added to or subtracted from by any legislative act or judicial decision. If the action is not one in chancery there can be no appeal to this court, regardless of statutory enactments, and, holding, as we do, that this action is not one in chancery, it follows that the motion to dismiss the appeal will be, and the same hereby is, sustained.

Motion to dismiss sustained.

Lemert, P. J., and Carter, J., the latter of the Seventh Appellate District, concur.  