
    De Ran v. The Colonial Savings Bank & Trust Company.
    
      Appeal — Right determined by nature of action and not judgment rendered — Appealability determined without reference to amended petition, when — Accounting, cancellation of note and injunction against disposing of collateral.
    
    1. The right of appeal is determined by the nature of the action, and not by the form of the judgment rendered. Where, after appeal is perfected, the plaintiff, by leave of court, files an amended petition in the appellate court, the right of appeal should be determined without reference to the averments contained in the amended petition so filed.
    2. Where the relief sought is an accounting, an injunction against selling and disposing of collateral, cancellation of a promissory note claimed to have been paid, which was secured by the collateral, and surrender of the collateral, the action is one in chancery, and is appealable.
    [1] Appeal and Error, 3 C. J. §39; [2] Id.
    (Decided May 1, 1925.)
    
      Appeal: Court of Appeals for Sandusky county.
    On motion to dismiss appeal.
    
      Mr. D. B. Love, Mr. John B. Stahl, and Mr. Hal G. De Ban, for plaintiff.
    
      Mr. George E. Schroth and Mr. A. V. Baumann, Jr., for defendant.
   Williams, J.

The plaintiff, Hal C. De Ban, brought his action in the court of common pleas against the defendant, the Colonial Savings Bank & Trust Company. Issues were joined between the parties upon the four causes of action in the third amended petition, as amended by interlineation, and the answer of the defendant. Trial was had to a jury upon the first three causes of action, and a verdict was returned in favor of the plaintiff thereon in the sum of $5,164.06. Motion for a new trial was filed by the defendant, and, thereafter, on the same day, the court overruled the motion for .a new trial, and entered judgment on the verdict in favor of the plaintiff, with costs. As a part of the same order and judgment, the court dismissed the fourth cause of action without prejudice to the rights of the plaintiff to sue, or to set up as a defense, counterclaim, or set-off to any action which the defendant might bring upon any cause of action other than those set out in the first, second, and third causes of action in the third amended petition, and refused to hear evidence in support thereof, although a tender of proof was made by the plaintiff. Thereupon the plaintiff, in due time, filed an appeal bond and perfected his appeal.

The matter now comes up on a motion filed by defendant to dismiss the appeal. The plaintiff by leave of this court has filed herein an amended petition setting out in amended form his fourth cause of action. We are of the opinion, however, that the right of appeal must be determined without regard to the pleading filed in this court, for, if the plaintiff did not have a right of appeal before it was filed, he did not better his position by its filing.

The right of appeal is determined by the nature of the action and not by the form of the judgment rendered. Hull v. Bell Bros. & Co., 54 Ohio St., 228, 43 N. E., 584. We quote from the first paragraph of the syllabus in that case as follows:

“The right of appeal to the circuit court from a final judgment of the court of common pleas, under the provisions of Section 5226 of the Revised Statutes, is determined by the nature of the action, and not by the form of the judgment rendered.”

While the test of appealability is changed under the provisions contained in the recent amendments to the Constitution, this principle is still applicable.

It is equally true that the right of appeal does not depend on the sufficiency of the pleadings. Rush v. Rush, 29 Ohio St., 440, and Dodsworth v. Hopple, 33 Ohio St., 16.

We quote from the per curiam in Rush v. Rush as follows: “Where a suit which is appealable is disposed of in the court of common pleas on a demurrer to the petition, and an appeal taken by the plaintiff to the district court, the appeal cannot be dismissed on the ground that the petition does not show a cause of action. The appellant has the right to have the judgment of the appellate court on the demurrer to his petition; and if the judgment is against him to ask leave to amend. ’ ’

It follows that the plaintiff below was not deprived of his right of appeal because of the fact that the fourth cause of action of the third amended petition was insufficient in law, if it was insufficient.

Under the amendments to the Constitution, only chancery cases are appealable. Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397, and Clark v. Clark, 110 Ohio St., 644, 144 N. E., 743.

In the leading case of Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397, in the first paragraph of the syllabus, the following language is employed:

“The jurisdiction of the courts of appeals in the trial of cases on appeal is expressly limited by the Constitution to chancery cases, and this jurisdiction cannot be enlarged by the General Assembly.”

In the opinion in that case, at page 450 (113 N. E., 399), the following appears: “Appealable cases, therefore, must be such cases as are now recognized as equitable in their nature; and perhaps the better way to express it would be, cases that were recognized as equitable actions before the adoption of the code of civil procedure, for, while our code established under one grand division all actions, whether of an equitable or a legal nature, and called them civil actions, yet there was no attempt to change the nature of the remedy.”

"What was the nature of the case made in the court of common pleas by the fourth cause of action of the third amended petition? An examination of that portion of plaintiff’s pleading discloses that it was an action for an accounting, for an injunction against selling or disposing of the collateral referred to, for cancellation of a note claimed to have been paid, which was secured by collateral, and, incidentally, for a surrender of the collateral. It has already been shown that the question is, not whether that cause of action contained facts .which showed that the plaintiff was entitled to equitable relief, but whether the nature of the case, determined from the pleading itself, made it a chancery case. Clearly the action was one of equitable nature, or in chancery, and was, therefore, appealable.

We in no sense undertake to pass upon the sufficiency of any pleading heretofore filed. All such questions will be for the determination of this court upon further proceedings.

The motion to dismiss the appeal will be overruled.

Motion to dismiss overruled.

Richards and Young, JJ., concur.  