ACTION TO ESTABLISH A MECHANIC’S LIEN.

Court of Appeals for Cuyahoga County.

#### Parker & Day Marble & Tile Co. v. The East Ohio Gas Co. et al.*

Decided July 2, 1917.

*Mechanics Liens*— Action *to Establish a Lien and tor Foreclosure*— Is *an Action at Law and Variable to a Jury, When*— Appeal *Does Not Lie, When.*

1. When in a suit for establishment of a mechanic’s lien and the foreclosure thereof, brought by a subcontractor against the-owner.of the building, such defendant interpledes the amount due under the contract to the principal contractor w-ho in turn sets up facts tending t'o show breach of the- contract and denies that anything is due plaintiff, the issues joined constitute an action at law and should be determined by the intervention of a jury.

2. In such a case appeal does not lie from the judgment' of the common pleas court.

Appeal: Court of Appeals for Cuyahoga county.

Error: Court of Appeals for Cuyahoga county.

*A. A. <& A. II. Bemis,*for plaintiff in error.

*White, Johnson, C,annon <& Neff,*for defendants in error.

*

 Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 9, 1917.

*398Lieghley, J.

The parties stood in the same order below.

The two cases a/bove, numbered 1707 and 1767 on the docket, are an error proceeding and an appeal from the same judgment in the court below. The plaintiff, a foreign corporation, filed its petition against the East Ohio Gas Company, alleging that the Traitel Marble Company had a contract for the marble work on the East Ohio Gas building; that said marble company had sublet a portion of the work to plaintiff; that plaintiff had performed all the conditions and requirements to be performed by it under the terms of said contract; and that it had taken all the necessary steps to perfect a lien upon said premises. The petition prayed for an accounting of the amount due, the establishment of the lien, and foreclosure thereof, if necessary.

The defendant, the East Ohio Gas Company, sought leave of court to interplead the amount due under the contract to the Traitel M'arble Company, a foreign corporation, which leave was granted, the said the Traitel Marble Company made a new defendant, and the East Ohio Gas Company discharged.

The Traitel Marble Company did not question in any manner the jurisdiction of the court below under the circumstances, but . answered, denying any liability under said contract to plaintiff, admitting the contract, but setting forth facts which if established tended to show a breach of said contract by plaintiff, and denying that any sum was due to plaintiff under said contract.

The case came on for trial in the court below and evidence was offered tending to establish the mechanic’s lien claimed by plaintiff, and a motion was made by defendant marble company to dismiss the case on the ground that the plaintiff failed to estab ■ lish a lien, which motion was granted and judgment rendered for defendant, with an order that all of the fund be paid to the defendant marble company without the intervention of a jury or the determination of any of the issues upon said contract made in the pleadings. From this judgment error is prosecuted to this court to reverse the same.

*399We are of the opinion that when the East Ohio G-as Company-paid said fund by leave of court into court, or made the same available by way of interpleader, said fund took the place of the lien, if any. And when the defendant marble company, without in any manner challenging the jurisdiction of the common pleas court, answered joining issue with plaintiff on the averments and claims in respect to said contract, said defendant thereby voluntarily consented to and agreed to a charge in the character of the action and submitted itself to the jurisdictiou of the court below. The court below thereby acquired jurisdiction and retained it for adjudication of the issues made in the pleadings. The court below had jurisdiction of the subject-matter and of the persons. The character of the action by the answer of the defendant became one of interpleader by reason of the nature of the answer. The fund substituted for the claimed lien was subject to the orders of the court. The only-issues remaining upon the face of the pleadings were what and how much if anything was due plaintiff under said contract.

The judgment of the court below, in face of the issues joined, deprived the plaintiff, even though it did fail to establish its lien, of a trial of the issues joined in respect to said contract, and without trial thereof judicially determined that the entire fund belonged to the defendant. If the fund under the control of the court was to be disposed of, it certainly should not be disposed of until the rights of the parties therein were determined. If the trial 'had proceeded with the gas company as the only defendant, then, the plaintiff failing to establish its lien, the court would have been obliged to dismiss the petition for want of jurisdiction to do otherwise and could not have awarded the fund to the marble company. The marble company voluntairly submitting to the jurisdiction, and tendering issue on the contract, thereby altered the situation.

When the case came to trial the issues joined constituted an action at law, and should be determined by the intervention of a jury, unless waived. The parties by their pleadings created *400and developed the state of the ease when it reached the trial room. Whether or not a case is an action at law or in equity is determinable by the pleadings. *Raymond*v. *T., St. L. & K. C. Rd. Co.,*57 Ohio St., 271.

Considering the ease in the light we do, as above stated, that the same was an action at law when it came up for trial, we conclude that no appeal would lie from the judgment entered at that time, and the appeal, being case No. 1707, is therefore dismissed. *Pratt, Admr.,*v. *Aetna Life Ins. Co.,*5 C. C., 587; *Warner*v. *Jaeger et al,*Id., 16; *Campbell*v. *Eames,*8 C. D., 374, and *Maginnis*v. *Schwab,*24 Ohio S't., 336.

In case No. 1767, the judgment of the court below is reversed and remanded for further proceedings, at costs of the defendant in error, the Traitel Marble Company.

Grant and Carpenter, JJ., concur.