APPEALS.

[Hamilton Circuit Court,

January Term, 1890.]

Swing, Cox and Smith, JJ.

#### *CHARLOTTE K. WRIGHT v. WESTERN UNION TELEGRAPH CO. ET AL.

The Unfavorable Part of a Decree not to be Appealed From.

Where the court of common pleas in a case pending before it, has for distribution a fund claimed by two parties, and by its decree divides the same, giving a certain amount thereof to each of them, and one gives notice of her intention to appeal to the circuit court from so much of said cause, (decree), as affects her rights in the sum awarded to her adversary, an appeal taken 'in pursuance of such notice should be dismissed on motion. Our statute contemplates and provides for an appeal from the whole of a decree, unless the interest of one of several parties is separate and distinct from that of the other party or parties, in which case, if he desires to appeal the part of the case in which he is interested it may be done. But in no case when the decree is entire, can he appeal from one part of a decree against him, leaving that part favorable to him to stand unaffected.

Error to the Court of Common Pleas.of Hamilton county.

*

 This case was distinguished by the circuit court in Keck v. Douglas, 3 Ohio Circ. Dec., 000 (s. c. 6, C. C. R., 649).

Smith, J.

The original papers or decrees in this case are not before us, aiid the transcript of the journal entries furnished shows only a copy of the final-decree entered in the case. It is evident, however, from this, that a decree had previously been entered, (and as is said by counsel, at a former term of the court), distributing among different lien-holders, on different and the same tracts of land, *605ie proceeds of the sale thereof, except the sum of $353.75, which had been reerved for the further order of the court.

On the fourth day of March, 1889, a final order was made, directing the herifl to pay out of the money in his hands: first, the unpaid costs, amounting d $6.75; second, to R. B. Warder $236.18 on his claim, and giving him a judgment for the balance still due him; and third, to Charlotte K. Wright, the residue, iz.: $111.4:0, and giving her a judgment for the balance still due her. There:pon, Charlotte K. Wright gave notice of her intention, to appeal from so much if this cause as affects her rights in said sum of $236.18. A motion has been iled to dismiss the appeal taken in pursuance of such notice, because the same vas from a portion only of the decree.

The general statute regulating appeals from the common pleas to the cir:uit court (sec. 5226, Rev. Stat.), evidently contemplates- an appeal from the whole )f a judgment, or final order, and sec. 5227, provides for the giving of notice of ;uch appeal. *“A*party desiring to appeal his cause to the circuit court” * * ‘shall enter on the records notice of such intention.” But sec. 5233, provides :hat “when the interest of a party desiring an appeal is separate and distinct from :hat of the other party or parties, and he desires to appeal the part of the case in vhich he is interested, it shall be allowed by the court.”

It is manifest in this case that the only controversy settled by the decree from which it was attempted to appeal, w-as the disposition to be made of the fund in lourt amounting to $353.73, and so far asdt appears, the only parties claiming it were Warden and the appellant Mrs. Wright. The court divided it between them, giving to Warden $236.18 thereof, and to Mrs. Wright the sum of $111.40, and by her notice of appeal the latter apparently seeks to have this court pass upon the right of Warden and herself to the $236.18, leaving the decree below in all other respects to remain as rendered.

If this is the effect of the notice so given, can it be done?

It is the claim of the counsel for Mrs. Wright that it can — that if in an equity case, two distinct claims are asserted by one party against, another, and a finding is made on one in favor of the plaintiff, and on the other in favor of the defendant, either party may appeal from the judgment against him, and that the other finding in his favor will stand, unless that is appealed from by his adversary.

We are of the opinion that such is not the law, even in the case supposed, of distinct claims. That under sec. 5226, an appeal by one of two párties must be of the whole case, or of the issues settled by the decree appealed from; that a party can not select certain findings against him to appeal from, leaving those in his favor to stand. And that a case between two parties alone, viz.: a defendant and a plaintiff, involving the ownership or right to a fund, does not come within the provisions of sec. 5232, allowing the appeal of a separate interest.

This is expressly stated by Judge Scott, in the decision of the case of Branch v. Dick, 14 O. S., 551, 557. Where, after quoting this section, as it appeared in S. & C. Stat., 1166, in the identical language of sec. 5232, he says: “I know of no other express provision of statute authorizing the appeal of a part of a case. And that provision is certainly not applicable here, where there are but two parties, and each interested in the case throughout.”

In this same case, the party gave notice of his intention to appeal from six definite and specific findings of the court, and the question was whether the appeal taken thereon, was good. The court there held, as we think was the case here, that the question adjudicated was not divisible: but it also held, that the plaintiff there succeeded in putting on the record notice of intention to appeal the whole. “He has specially particularized every part of the cause made in his petition, and the findings and decrees of the court made thereon — from all which he gives notice of appeal.” ,

Such, we think, is not so in the case before us. On the contrary, the appellant has endeavored to appeal only from so much of the decree as was against *606her; leaving the decree in her favor to stand, and the language used in the notice shows this. This, we think, can not be done.

E. R. Donahue, for the motion.

P. A. Reece, *contra.*

1 Substantially the same ruling was made by the district court of this county, in the case of McGowan v. The McGowan Pump Co., 8 Dec. R., 218 (s. c. 6 B., 338), and by this court in the case of Bruce v. Harlcer, not reported. The motion will be sustained, and the appeal dismissed.