(First Circuit — Hamilton Co, O., Circuit Court

January Term, 1898.)

Before Cox, Smith and Swing, JJ.

#### LOCKLAND LUMBER COMPANY v. ANNA McLEAN MARSH.

*Appeal*— Money *judgment not appealable because joined parties assert*liens—

Where a party asks a money judgment, the fact that other parties joined in the action with him assert liens, will not entitle such party to an appeal of the. case as against the opposite party against whom he asks a money judgment.

*Appeal in interpleader cases*— Sec. *5016, B. S.*

Where money is sued for, and it is brought into court under the provisions of sec. 5016, R. S.,on the ground that there is a controversy as to who is entitled to it, either of the parties is entitled to a trial by jury on such issue, and the case is not appealable.

On Motion to dismiss the appeal.

Smith, J.

The plaintiff in this case filed a petition against Anna M, Marsh et al. to recover a judgment against Mrs. Marsh op an account for lumber, materials, etc., furnished her in the construction of a building, alleging that there was a balance due-from her on said account of $616.81, and in a second cause of action asking for the foreclosure' of a mechanic!» *433lien taken to secure the same. Other persons claiming liens were made parties.

After the service of process upon her, Mrs. Marsh filed •an affidavit under sec. 5016, Rev. Stat., in substance admitting that there was due from her on the construction of such building the sum of $616.81, and that $590.40 of this was claimed by other persons as well as the plaintiff, and •offering to bring the same into court for the parties to settle their rights thereto. She also admitted that she owed the plaintiff on its claim $26.41, and offered to confess a judgment m favor of said plaintiff therefor and for the accrued •costs. On the order ,of the court the said sum of $590.40 was paid into court, and the several claimants proceeded to litigate their rights as to said fund. The plaintiff did not accept the offer of Mrs. Marsh to accept judgment for the .$26.41.

After the trial the court found that Mrs. McLean Marsh •was indebted to plaintiff in the sum of $26.41, and rendered a judgment therefor. The $590.40 was awarded to parties •other than the plaintiff. From this judgment plaintiff attempted to appeal, and the question submitted is whether •such an appeal lies.

Clearly, as against Mrs. McLean Marsh,the plaintiff had no right to appeal. It had two causes of action against-her —one for money only, and the.other for foreclosure of its lien. If there were no other defendants in such case, no appeal could be taken. As it claimed a money judgment against her, under the settled law of this state, no appeal by either would lie, as either party was entitled to a . trial by jury. Does the fact that other parties assert liens against this property give plaintiff the right to appeal as to her? We think not. Under the circumstances, the only way in which the judgment rendered in favor of plaintiff, against Mrs. Marsh could be reviewed would be by petition in-error, and as Mrs. Marsh was a necessary party to the appeal, we *434áre of the opinion that, on principle, the' same rule must apply to the controversy between the plaintiff and the other defendants as to the fund paid by Mrs. Marsh into court.

*Cobb &*Howard, for Plaintiff.

*Morrow & Oldham-, Drausin Wulsin; OHver' B. Jones-,. Harmon, Colston, Goldsmith & Hoadly; Chas. D'. Irvine-,. John G. OConnell- J. T. DeMfar-, C. L. Lundy,*and *E.. B. Molony,*for the Defendants.

We think, too, that the case of Maginnis v. Schwab, 24 Ohio St., 336, is authority for holding that in a case like-this, where money is sued for, and it is brought into court under the provisions this section, on the ground that there-is a controversy as to who is entitled to it,that,in such case, either of the parties is entitled to a trial by jury on such issue, and therefore that the case is not one for appeal. The-motion will therefore be granted and the appeal dismissed.

Swing, J., concurs.

Cox, J., is of the opinion that the motion should be overruled.