#### The Willson Improvement Company *v.*Malone et al.

*Issues of law and issues of fact*— How *tried*— Section *5130, Revised Statutes*— Recovery *of money*— Contemporaneous *appeal and error from common pleas to circuit court*— Effect *of*— Court *proceedings.*

1. In view of the comprehensive terms of Section 5130, Revised Statutes, .issues of fact in all actions “for the recovery of money only” are triable to a jury and no exception is admitted because of the number of the items in an account which is the basis of the action, unless there is such relation of parties as will authorize a court of equity to decree an accounting by one for the information of the court and his adversary.

2. Within the meaning of the section an action for money is an . action for money only, unless there is sought some form of relief peculiar to courts of equity, and the action cannot be appealed from the common pleas to the circuit court. *{Black, Receiver,*v. *Boyd,*So Ohio St. 46, overruled.)

3. Appeal and error being contemporaneously taken from the common pleas court to the circuit court the latter court errs in dismissing the petition in error unless, the action being appeal-able, the taking of the appeal is effective to suspend the judgment of the court of common pleas.

(No. 10629

Decided May 19, 1908.)

Error to the Circuit Court of Cuyahoga county.

*233William F. Malone and Frank Gorman, partners as Malone and Gorman, brought suit in the court of common pleas against the Willson Improvement Company to recover for work and material in constructing a brick and steel apartment house in the city of Cleveland. Their amended petition, upon which the cause was tried, contained four causes of action for the balance of the contract price of $118,544.00, for increase in the cost resulting from subsequent changes of the contract and for damages resulting from delays alleged to have been occasioned by the defendants, concluding with a prayer for a judgment for $29,309.48, and for no other relief: By cross-petition the company sought to recover from the plaintiffs on account of defects in workmanship and material and delay in completing the work. Later the sureties upon the bond of the principal contractors were brought in and allegations were made charging them with liability to the owner because of their alleged defaults. Numerous material-men and sub-contractors filed cross-petitions setting up' their claims and asking to be compensated out of any sum which might be found due from the owners to plaintiffs. The subjects of controversy raised by the issues were very numerous. All the parties waived a trial by jury and the court upon the pleadings and the evidence rendered judgment in favor of the plaintiffs for $13,195.00. Thereupon the company took steps to appeal the cause to the circuit court. It also filed a petition in error in the circuit court with a bill of exceptions containing all the evidence adduced upon the trial in the common pleas and praying for a reversal of the judgment upon the ground, among othérs, that the judgment was contrary to the *234weight of the evidence. In the circuit court Malone and Gorman moved to dismiss the appeal upon the sole ground that the action was not appealable. Their motion was overruled. The circuit court, having decided that the action was appealable, of its own motion, dismissed the petition in error. That order of dismissal is assigned for error here.

*Messrs. Beardsley & Morgan*and *Messrs. Henderson, Quail & Siddall,*for plaintiff in error.

This court has sanctioned the practice of concurrent prosecution of appeal and error, in cases of doubt, until the termination of the validity of an appeal, the question being before it in the case of *Hull*v. *Bell Bros. & Co.,*54 Ohio St., 228.

This practice of prosecuting actions for review in both ways, when in doubt, has been generally commended. *Mining Co.*v. *Canal Co.,*118 U. S., 264; *Hurst*v. *Hollingsworth,*94 U. S., Ill; *Lockman*v. *Lang,*132 Fed. Rep., 1.

It would be manifestly improper to order a dismissal of a second suit between the same parties, in those cases where the bringing of the second action was a necessary or proper step to create or, preserve a lien, or to avoid the bar of the statute of limitations, or to give due notice of *lis pendens*of the plaintiff’s rights, or to guard against the results of a possible dismissal of the first suit before its determination upon the merits. *Zimmerman*v. *So Relle,*80 Fed. Rep., 417; *Green*v. *Underwood,*86 Fed. Rep., 427; *Gates*v. *Bucki,*53 Fed. Rep., 961; *Heidritter*v. *Oil Cloth Co.,*112 U. S., 294; *Hailman*v. *Buckmaster,*8 Ill., 498.

*235An action which exhibited the mutual accounts, as in the case at bar, was triable at common law in the old action of account by reference to auditors, without. a jury, at least between certain classes of litigants. 3 Blackstone, 164; 1 Waites’ Actions and Defenses, 73, 173.

Under the old form of procedure, in a case as at bar, a law court could have refused a trial by jury, and sent the causes to “auditors,” or could have sent the litigants to a court of equity *(Appleby*v. *Brown et al., Admrs.,*24 N. Y., 143); and that at common law, understood in its broad sense *(Campbell*v. *Coal & Iron Co.,*9 Col., 60; *Bank*v. *Miller,*L. R. A., 387), which included equity jurisprudence, Malone and Gorman had no absolute right to a jury trial.

That the ultimate relief sought is the recovery of money merely, is not conclusive that the action is one for the recovery of money only. *Black, Rec’r,*v. *Boyd,*50 Ohio St., 46; *Rowland*v. *Entrekin,*27 Ohio St., 47.

In actions upon accounts under a contract, equity has jurisdiction when the issues necessary to be determined in order to arrive at a just conclusion, are so numerous and dependent upon such a variety of evidence, or evidence of such technical character, as that it is substantially impossible for a jury retiring in the ordinary way to a jury room and obliged to carry all the oral evidence in their memories, to come, at one session, to anything like a just and proper conclusion. *Railway Co.*v. *Nixon, 1*H. L. (1847), 111

We claim in this case there is a complicated account to be passed upon by the court, presented by both the plaintiffs and this defendant. Even, how*236ever, if there was. a complicated account on one side only, a court of equity would have concurrent jurisdiction. Pomeroy on Equity Jurisprudence (3 ed.), Section 1421.

As we have already said, Malone and Gorman’s right to a judgment against the improvement company is subject to its first being shown, through an accounting, that the claims. of the lienholders do not take all the fund, and to create a fund their equitable right to claim estoppel and fraud must be established to overcome the effect of certificates of the architects issued to the improvement company and the effect of their failure to have certificates of said architects showing any amount due on contracts from the improvement company. The lienholders stand in the shoes of Malone and Gorman, and must also have the same relief before they can establish claims against the improvement company, and if any such claims are shown to exist, there must be a marshalling of the liens upon which they are based before any final judgment can be entered — a prolific source of equity jurisdiction. Pomeroy on Equity Jurisprudence (3 ed.), Section 186, p. 237.

*Messrs. Ford, Snyder & Tilden; Messrs. Brady & Dowling*and *Mr. W. D. McTighe,*for defendants in error.

The issues shown by the pleading in an action will show whether, after a judgment, there be a right to a second trial, under the act passed April 12, 1858. If there be an issue of fact joined between the parties, which either party has the right to demand shall be tried by a jury, then either *237party may demand a second trial. If there be a joinder of several causes of action, and an issue of fact as to either of them, which either party has a right to have tried by a jury, a second trial may be demanded, and there can not be an appeal, though one or more of the causes of action would be such as would otherwise authorize an appeal. *Ladd*v. *James et al.,*10 Ohio St., 438.

The right intended to be secured by the constitution, was the right of trial by jury as it was recognized by the common law; and within the right thus secured is the right of either party, in an action for the recovery of money only, to demand that the issues of fact therein be tried by a jury. Was the action below such, when considered in the light of the facts stated in the petition, as entitled the parties to demand a trial by jury? Or, in other words, without regard to the prayer of the petition, which' does not determine the nature of the cause of action stated in the petition, was it an action for the recovery of money onfy? *Dunn & Witt*v. *Kanmacher & Stark et al.,*26 Ohio St., 498.

At the time of the adoption of our present constitution plaintiffs had the right to bring and maintain their legal action in the form that they did in this case and to maintain it to a jury free and unaffected by such equitable defense. The code has allowed the joinder of such equitable defenses, but the joinder cannot operate to deprive plaintiffs of a trial by jury of issues the same as they were entitled to try them under the practice as it existed at the adoption of the constitution.

*238Shauck, J.

It is accepted as a result of *Hull et al.*v. *Bell Bros. & Co.,*54 Ohio St., 228, that the plaintiff in error, being dissatisfied with the judgment of the court of common pleas and desiring to appeal its cause to the circuit court for a trial *de novo,*was not required to determine at its peril that the cause was appealable; but that it might concurrently prosecute error and appeal, the proceeding in error to be retained by the circuit court until the question of the appealability of the case should be affirmatively determined and then to be dismissed. Such was obviously the view taken by the circuit court, when, after overruling the motion to dismiss the appeal of the plaintiff in error, it dismissed its petition in error. It seems to be worth while to observe in this connection that the jurisdiction of the circuit court over the subject-matter of the controversy between these parties was undoubted. The doubt concerns the method of invoking that jurisdiction. Had the parties all entered, without objection, upon the •trial of the cause upon the appeal, the question of the appealability of the case could not have been thereafter raised, for the case would not fall within the established rule that consent cannot give jurisdiction over the subject-matter where that does not actually exist. But the defendants in error here challenged the propriety of that mode of resorting to the jurisdiction of the circuit court by moving to dismiss the appeal. Their motion being overruled, they took an exception which preserves that question in the record. A petition in error being prosecuted here at a proper time, the ruling of the circuit court on the motion to dismiss the appeal would be subject to reversal by this court when it would be *239too late to institute a proceeding in error in the circuit court for the reversal of the judgment of the court of *common*pleas. Such a petition in error is not now before us, nor could it be availingly prosecuted here until a trial of the appeal in the circuit court should result in a judgment more favorable to the appellant than was that of the court of common pleas. The appellant evidently not satisfied that such a fate may not await its appeal, and desiring to poll this court upon that question, files its petition in error here praying for the reversal of the circuit court’s order dismissing its petition in error, but arguing that the order for whose reversal it prays should be affirmed, and the affirmance be placed upon the ground that the appeal, being properly taken, was effective to suspend the judgment of the court of common pleas. Counsel for the defendant in error concur in the view that the question of the appealability of the case is thus presented to us for determination, but they argue that the circuit court erred in overruling the motion to dismiss the appeal and in dismissing the petition in error.

The question does not seem difficult if the statutory provisions affecting it are accepted at their obvious meaning. The appeal was taken under Section 5226, Revised Statutes, which defines the characteristics of a case which may be appealed from the common pleas court to the circuit court. According to its plain requirement the case must be a civil action, it must be within the original jurisdiction of the court of common pleas and the right to demand a jury must not exist. The absence of any one of these three characteristics excludes the case from the category of caseg which *240may be appealed for a trial *de novo.*It is admitted that the first and second of these characteristics are present. The presence of the third is denied. Whether it is present or not will be ascertained by applying to the issues presented, the provisions of Section 5130, Revised Statutes, which defines the cases in which a jury may be demanded: “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 trial be waived, or a reference be ordered as hereinafter provided.” By this section the legislature has exercised the power vested in it by the constitution to extend the right of trial by jury to cases which were not so triable at the time of the adoption of that instrument. It is now only approximately correct to say that all equitable actions are appealable. This section in its application to many cases ignores the distinction between actions at law and suits in equity, and extends the right of trial by jury to all actions for the recovery of money only, although the principles upon which a recovery may be had are equitable in their nature and origin, as in actions to enforce liability under the equitable doctrines of contribution and subrogation. It does not, however, extend the right of trial by jury to cases calling for any form of relief peculiar to courts of equity. When the action is for the recovery of money, and no equitable relief is sought, it is an action for money only.

The consideration definitely urged here is, that the legal remedy is inadequate because in the multitude of parties and questions and controverted items of account, there arose such complexity that it was.|iot practicable for the case to be tried and *241determined by a jury. If both parties were of that opinion it was competent for them to waive a jury, as they did in the court of common pleas, or they might have consented to a reference pursuant to the provisions of the code. But it is obvious that the view thus urged, no form of equitable relief being sought, is but an adverse criticism of the general assembly for enacting Section 5id0- That view derives much support from the point decided, and from the language of the opinion in *Black, Receiver,*v. *Boyd,*50 Ohio St., 46. The right to appeal was sustained in that case, although it was for the purpose of recovering a judgment for the balance upon an account between a bank and its depositor, the account having run for ten years, and containing so many disputed items that the parties alleged their inability to arrive at a settlement. The cases are identical with respect to the considerations in hand, and what is said of the present case may be applied to that. No relation of parties appears, which would authorize a court of equity to compel one party to exhibit an account for the information of the court and his adversary, as in the case of partners or trustees. What is said upon the subject of accounting in equity is not pertinent to either case, because the relations which would authorize a court of equity to require such an accounting do not exist. Here the parties dealt on equal terms, and either believing the other to be indebted to him, might have recourse to an action at law for the recovery of the amount of such indebtedness, resorting to the entire field of legal evidence to support his allegations, that is, being obliged to adduce such evidence as was adduced in the present case. If the case should be *242tried *de novo*in the circuit court upon the issues now joined, it would be upon such evidence as is contained in the bill of exceptions there filed with the petition in error, and that is the evidence which would have been submitted to a jury in the court of common pleas in the present case if trial by jury had not been waived. These cases, involving no equitable relief, distinguish themselves from the many cases cited in which courts of equity have rendered judgments for money to enforce obligations resulting from the awarding of equitable relief in the same cases. Further exposition of thé subject would not be profitable for the question calls for nothing more than an application of what this court has already said in *Ladd*v. *James et al.,*10 Ohio St., 437; *Dunn & Witt*v. *Kanmacher & Stark et al., 26*Ohio St., 498; *Chapman*v. *Lee,*45 Ohio St., 356; *Gunsaullus, Admr.,*v. *Pettit, Admr.,*46 Ohio St., 27; *Bricker*v. *Elliott, Admr.,*55 Ohio St., 577, and *Lange*v. *Lange et al.,*69 Ohio St., 346. Attention to the language of the statute and to the points decided in these cases makes it clear that an action for money is an action for money only unless a recovery is to be aided by the exercise of the powers of a court of chancery to be indicated, not by what the judge may think, but what the case requires him to decree.

Since the publication of the report of *Black*v. *Boyd,*it has been often and vainly studied by lawyers and courts seeking some rule by which to determine the number of items in an account which is the basis of an action • for money only, which will engraft an exception upon a statute which confers the right of trial by jury in all such cases without any exception whatever. It has *243been found impossible to deduce such a rule from the decision or to reconcile the case with the statute or the other decisions under it. The case is overruled.

*Judgment reversed.*

Price, C. J., Crew, Summers, Spear and Davis, JJ., concur.