APPEALS.

[Franklin Circuit Court,

September Term, 1890.]

Sbauck, Shearer and Stewart, JJ.

#### *John H. Warner v. Frederick Jaeger et al.

Action to Determine Adverse Rights oe Claimants to a Fund is Appearabre.

In a suit brought by mortgagors to have the adverse rights of those who claim to own-the notes he owes, determined, and such claimants intervenes for that purpose, the issues joined between them are triable to a jury, and an appeal will not lie to the circuit court.

Appeal from Court of Common Pleas of Franklin county.

*

 This decision is cited as authority in Pratt v. Insurance co., *post,*287.

Stewart, J.

This case is submitted to the court upon a motion to dismiss the appeal, for the reason that the cause is not appealable. This question is to be determined by an examination oí the pleadings in the cause.

The original petition was filed by certain mortgagors, who, alleged their ability and. willingness to pay off the mortgage given by them, but averred that the defendants, J. and H. each claimed to be the owners of the notes secured by the mortgage, and asked that they might be allowed to pay the money into court and have the mortgage cancelled.

The defendants answered, each claiming to be the owner of the notes, and entitled to the money due thereon, and denying the title of the other; the defendant, J., pleading that the plaintiff’s notes and a large number of other notes, and accounts were placed in the hands of H., as an attorney, for collection ; that part of the claims were collected, and payments made on the others, but he does not know how much and has not been able to obtain from H. any statement of the amounts so paid or the return of the notes and accounts; that H. claimed, some lien on the notes for his fees. He asks that H., may be required to make a statement, of his accounts and claims of his collections and fees, and surrender the notes to him.

He replied, denying all the charges made against him.

■ Upon these issues the cause was tried to the court, and a judgment rendered in favor of H., from which the defendant, J., appealed.

“ The right of appeal in all cases is fixed by statute, and is given in those causes of which the common pleas court had original jurisdiction if the right to demand a jury therein did not exist.” Revised Statutes, 5226.

“Issues of fact arising in actions for the recovery of money only, or specific real or’ personal property, shall be tried by a jury, unless a jury is waived, etc.” Section 5030, Revised Statutes.

There has been some confusion in the decisions as to the appealability of causes, but we think that the supreme court has now furnished us the test lor passing upon such questions.

“ The right to a trial by jury does not depend upon the principles upon which relief is-asked, but upon the nature and-character of the re ief sought. If the relief sought is'a judgment for money only, the tact that before the adoption of our reformed system ol procedure, the proper remedy would have been by a suit in equity does not affect the rig t of either party to a trial by jury upon any issue of fact made by the pleadings.” Gunsaulus v. Pettit, 46 O. S., 27.

And the fact that an accounting was asked for does not make the case appeal-able, if a money judgment is sought and a judgment for money will satisfy plaintiff’s claim. Chapman v. Lee, 45 O. S., 456.

Looking then at these pleadings, it is clear that these defendants, who were. the litigants in this case, were each seeking a judgment for money upon these-notes, and the issue to be determined was, which one was entitled thereto, and. that a judgment for money would iully satisfy the claim made by each.

It is said the court below held that this was a chancery case, but this can in no *way*affect our judgment in the matter. We think the court was clearly *10wrong in so holding, but the question presented to us is not what was done below, but whether the cause is in this court.

C. T. Clarke and S. Hambleton, for motion.

J. D. Sullivan, contra.

Although it does not appear that this action was prosecuted under the forms prescribed in the statute of interpleader, sec 5016, Rev. Stat. yet we are unable to distinguish this case so far as the question of appeal is concerned, in principle from the case of McGinnis v. Schwab, 24 O. S., 336, where it was held that a litigation over a fund in court between a plaintiff and a defendant, substituted under the provisions of sec. -5016, was an action for money only.

It follows that the motion must be sustained, and the appeal dismissed.