
    No. 409
    FRANK v. FIRST NATIONAL BANK
    No. 19754.
    Supreme Court
    On motion to certify.
    Dock. April 5, 1926.
    544. FORECLOSURE — Is an action for judgment on a note and foreclosure of a mortgage securing the same an equitable proceeding, or is it an action at law and triable before a jury?
    Attorneys — Benjamin F. Levinson and D. B. Ulrey, Columbus, for Frank; C. E. Blanchard, Columbus, for Bank.
   This action was brought originally in the Franklin Common Pleas by the First National Bank of Washington, N. C., against Fannie Frank and Samuel Frank, on three promissory notes and for foreclosure of a mortgage securing them.

Fannie Frank filed an answer setting up several defenses, including failure of consideration, fraud, duress, etc., and a cross petition asking for affirmative relief in the cancelling and surrendering of the notes and mortgage.

The Common Pleas denied the defendant a jury trial on the ground that it was an equitable case and not an action at law and rendered judgment on the notes and decreed foreclosure.

This judgment was appealed and the Appeals sustained a motion filed by the Bank to dismiss the appeal as far as the judgment on the notes was concerned, on the ground that it was an action at law and therefore not appealable.

Frank in the Supreme Court, contends:

1.That the judgment of the Appeals was erroneous and contrary to law and bases her contention on 100 OS. 481; 82 OS. 34-41; 108 OS. 314; and Stevens et v. Peck et., Ohio Appeals, First District, Hamilton County, Numbers 2327, 2328 and 2329, appearing in 2 Abs. 778.  