#### Blair, Appellant, *v.*Payer, Appellee; Stanton, Appellant.

(Decided May 22, 1939.)

*30*Messrs. Harrison S Marshman,*for appellant, Cora B. Blair.

*Mr. Joseph L. Stern*and *Messrs. Payer, Corrigan, Bleiweiss é Cook,*for appellee, Harry F. Payer.

*Messrs. Mooney, Hahn, Loeser, Keough S Freedheim,*for appellant, Frank W. Stanton.

Hamilton, P. J.

The question will be considered as an appeal on questions of law. There is a bill of exceptions filed in the case.

Plaintiff, Cora B. Blair, appellant here, brought an action against the defendants, Harry F. Payer and Frank W. Stanton, on a simple promissory note, executed on October 26, 1929, payable five years after date to the order of R. G. Dunning, for the sum of $20,000, with interest at the rate of six per cent per annum. The note was secured by mortgage of even date, on certain property described. The note was signed by Harry F. Payer and Frank W. Stanton.

The note was indorsed:

“Pay to Cora B. Blair, without recourse on me.

“(Signed) R. G. Dunning.”

There are also some indorsements of payments of interest.

The action is set forth in the second amended petition, and in the prayer thereof the plaintiff prays for judgment against the defendants in the sum of $20,000, with interest.

The defendant Stanton filed his answer admitting liability on the note, as alleged.

Defendant Payer filed an amended answer, in which, in the first defense, he denies that the plaintiff was the owner of the note; denies that all credits for payments on said note appear on the alleged copy of the note pleaded by plaintiff; and denies that he is indebted to. plaintiff in any sum whatsoever.

*31The indorser, R. G. Dunning, was made a party in the case.

■ In the second defense, Payer sets up what he calls a counterclaim and cross-petition, in which he charges the plaintiff and the defendant Stanton, together with Dunning, with fraud and false representations in procuring his signature to the note; charges collusion, conspiracy, and fraudulent scheme on the part of the plaintiff and defendants; sets up in detail what he claims to constitute fraud and conspiracy; sets up a mortgage given to secure the notes, which mortgage he claims was also procured by fraud, setting up details constituting what he designates a fraud and misrepresentation; and asks for damages in the sum of $14,536.31.

In the second cause of action, in what he designates his cross-petition, he asks a cancellation of the note and mortgage, and a release of the cross-petitioner from all liability thereon, and that the mortgage given to secure the note be also cancelled, on the same ground on which he seeks cancellation of the note.

When the case was called for trial, the plaintiff and Stanton demanded a jury, to which they were entitled if the action was an action at law, and not in chancery. The trial court overruled their demand for a jury, over their objection, and proceeded to hear the case as one in chancery and triable to the court without a jury.

If the plaintiff and the defendant Stanton were entitled to trial by jury as a law case, the ruling of the court in denying the right of trial by jury was reversible error.

The plaintiff’s second amended petition states a law action, pure and simple, in that it is a suit on a promissory note for money only. True, some of the defenses sound in equity, but'that could not change the plaintiff’s law suit from an action at law to one in chancery. The statute permits the filing of equitable *32defenses, but does not *ipso facto*change the law suit from one in law to one in equity.

The answer and the so-called cross-petition in the last analysis constitute only an equitable defense to the main action, which was at law.

The pleadings bring the case within the case of *Quebec Bank of Toronto*v. *Weyand & Jung,*30 Ohio St., 126, which ease was approved in *Patterson, Exr.,*v. *Volmar,*131 Ohio St., 48, 1 N. E. (2d), 323.

Our conclusion is that the answer sets up equitable defenses in a law case, but this would not deprive the plaintiff in her law action of a trial by jury. .

Under these considerations and on authority of *Quebec Bank of Toronto*v. *Weyand & Jung, supra,*the judgment is reversed, and the cause is remanded to the Court of Common Pleas of Cuyahoga county, for further proceedings according to law.

See also, *Equitable Life Assurance Soc.*v. *Brown,*213 U. S., 25, 53 L. Ed., 682, 29 S. Ct., 404; *Complete Building Show Co.*v. *Albertson,*99 Ohio St., 11, 121 N. E., 817; *Reed’s Admr.*v. *Reed,*25 Ohio St., 422; *Rothman*v. *Engel,*97 Ohio St., 77, 119 N. E., 250; *Gowdy*v. *Roberts,*31 Ohio App., 33, 166 N. E., 141.

This conclusion renders it unnecessary for this court to pass upon any other errors, which would, necessarily, be based upon an invalid trial.

*Judgment reversed and cause remanded.*

Matthews and Ross, JJ., concur.

Hamilton, P. J., Matthews and Ross, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.