Opinion
No. 21717
Decided November 20, 1929.
Court of Appeals — Jurisdiction — Chancery case — Money judgment for contract breach and accounting, receiver and injunction, not appealable — Chancery or law action determined from pleadings and relief sought.
1. The nature of the action, as shown by the pleadings and the character of the relief sought under them, determines whether such action presents a case in chancery or an action in law.
2. Where a petition declares upon a breach of contract and recites facts which, if proven, would entitle the plaintiff to a money judgment, and the prayer of such petition asks for a money judgment and the answer denies the right thereto, such action is one at law "for money only", in which either party might demand a jury trial, and is not a suit in chancery for equitable relief, even though the appointment of a receiver, an allowance of an injunction and an accounting are asked as ancillary and incidental to the main relief sought. Such action is not appealable.
ERROR to the Court of Appeals of Montgomery county.
This is a proceeding to reverse the Court of Appeals of Montgomery county. In the original action in the common pleas court, the plaintiff in error, Anna K. Wall, filed her petition alleging that she had deposited with the Dayton Federation Company $1,007.05; that she entered into a verbal agreement with this defendant that this deposit could be withdrawn on demand; that later she presented her passbook to the defendant company and demanded the return of her money, which was refused. She then charges in her petition that the defendant company received the money to be invested in mortgage securities, but that it had been conducting a banking business without any authority of law; that it repeatedly paid dividends to its stockholders out of its capital when its books showed an operating deficit; that the officers and directors of the company diverted the funds; that $300,000 of the money belonging to the defendant company had been loaned without any security whatsoever; that, while a large number of shares of stock had been sold, only one certificate had ever been issued; that the stock sales were induced and made by false statements of the financial condition of the defendant company; that the continuance of these acts would work irreparable injury to the plaintiff and other stockholders and depositors, by dissipating the assets of the defendant company.
In her prayer the plaintiff asks, first, a judgment for $1,007.05; second, for an accounting; third, that a receiver be appointed to take charge of the corporate property; fourth, that the defendants be enjoined from disposing of any property now in their possession belonging to the defendant company; and, fifth, for general equitable relief.
The plaintiff filed a motion for the appointment of a receiver, and the defendants filed an answer reciting that plaintiff had subscribed for certain stock in the defendant company; denied the allegations of misrepresentation, violation of contract, etc., and set up the condition of the company, such latter averment being to meet the request for the appointment of a receiver.
The matter came on for hearing before the common pleas court upon the motion for a receiver, as well as upon the pleadings; and, the case being at issue, it seems to have been heard by the court upon the merits, although the record does not show the waiver of a jury. At the conclusion of the evidence produced by the plaintiff, the defendant moved that the case be dismissed for the reason that the petition did not state a cause of action for the appointment of a receiver, and that the plaintiff had failed to make a case.
Upon argument and submission of such motion, the court found that the plaintiff was a stockholder, had subscribed for stock, and that her rights were those of a stockholder and not those of a creditor; and on the questions of fact as to the alleged violation of contract, misrepresentation, etc., the issues were found in favor of the defendants.
The journal entry of the court of common pleas shows: "It is, therefore, considered, ordered, adjudged and decreed that the petition heretofore filed by the plaintiff be and the same is hereby dismissed at the cost of the plaintiff herein.
"To all of which the plaintiff by her counsel excepts, and thereupon the plaintiff gave notice of appeal and the court fixed the amount of appeal bond at $500."
When the case came on to be heard in the Court of Appeals, the defendants filed a motion to dismiss the case for the reason that said cause was not appealable, which motion was sustained in the Court of Appeals, and error is now prosecuted to this court to reverse such finding of the Court of Appeals.
Messrs. Marshall Harlan, for plaintiff in error.
Messrs. Burkhart, Heald Pickrel, for defendants in error.
The record discloses that the plaintiff asked for a money judgment for money had and received on alleged misrepresentations and violation of contract. We deem it well settled that, where a petition asks for a money judgment, and pleads facts necessary for establishing such right, and an answer is filed which raises issues of fact upon which either party might demand a jury trial, such cause is a law action and not a chancery case. Section 11379, General Code, recites in part: "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." See Gunsaullus, Admr., v. Pettit, Admr., 46 Ohio St. 27, 17 N.E. 231; Willson Improvement Co. v. Malone, 78 Ohio St. 232, 85 N.E. 51.
Whether a suit is one in chancery or an action at law is to be determined from the pleadings and from the nature and character of the relief sought. Raymond v. T., St. L. K. C. Rd. Co., 57 Ohio St. 271, 48 N.E. 1093; Maginnis v. Schwab, 24 Ohio St. 336. The application for the appointment of a receiver and an accounting and injunction was purely ancillary to the main relief sought, to wit, a recovery of a money judgment. Such averments did not make the case one in equity. Chapman v. Lee, 45 Ohio St. 356, 13 N.E. 736; Lange v. Lange, 69 Ohio St. 346, 69 N.E. 611; Fisher v. Bower, 79 Ohio St. 248, 87 N.E. 256; Complete Bldg. Show Co. v. Albertson, 99 Ohio St. 11, 121 N.E. 817. The case of Forest City Investment Co. v. Haas, 110 Ohio St. 188, 143 N.E. 549, is also in point and determinative of the matter of the appointment of a receiver.
The pleadings in this case disclose that the recovery of a money judgment for a breach of contract was what was sought by the plaintiff, in the light of the plain averments of the petition and the denials of the answer, and there was thus presented an issue of fact which was triable to a jury, and therefore an action at law, which was not appealable, but was to be reviewed by petition in error. The application of the equitable principles set forth in the petition were only incidental to the determination of the right of the plaintiff to the money judgment which she sought, and did not make the action a chancery case, and hence appealable. The Court of Appeals was right in so holding, and it becomes our duty to affirm such judgment.
Judgment affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS and ALLEN, JJ., concur.