S. S. Kresge Co. v. B. D. K. Co.

This cause comes into this court both upon error and appeal by S.S. Kresge Company. Motion is made on behalf of The B.D.K. Company to dismiss the appeal, it being claimed for this motion that the action below was not a chancery proceeding. "Where a defeated litigant is doubtful of his right of appeal, he may prosecute appeal and error concurrently to the Court of Appeals. "Where both appeal and error have been prosecuted to the Court of Appeals, a perfected appeal suspends the judgment of the trial court; and if a motion to dismiss is filed by the appellee it becomes the first duty of the appellate court to determine whether the case is appealable; if the case is one in chancery, the appellate court errs in hearing and determining the error case and in dismissing the appeal, when such motion remains undecided. * * * "While the motion to dismiss the appeal is pending and remains undecided, the appellant cannot be compelled to elect whether he will try his case on error or appeal." Union TrustCo. v. Lessovitz, 122 Ohio St. 406, 171 N.E. 849. This court must, therefore, first decide the motion to dismiss the appeal. The proceeding was originally instituted under the Declaratory Judgments Act. The question is whether a proceeding so brought is a chancery proceeding; if a chancery proceeding, motion to dismiss the appeal must be overruled, otherwise sustained, *Page 104 as the jurisdiction of the Court of Appeals in the trial of cases on appeal is expressly limited by the Constitution to chancery cases. Wagner v. Armstrong, 93 Ohio St. 443,113 N.E. 397. The action was instituted in the Common Pleas Court under the provisions of Section 12102-1, et seq., General Code. It is claimed by The B.D.K. Company et al., designated appellees herein, that the Declaratory Judgments Act authorizes a special statutory proceeding, and, therefore, is not appealable to this court. We are of opinion that the question of the appealability of a case does not depend solely upon whether the right and remedy are created by statute, but upon the broader proposition as to whether the basic principles of the proceedings authorized by the statute are equitable in character and based upon some equitable doctrine formerly cognizable in courts of chancery. Where rights are created by a statute which prescribes the particular method by which they are to be enforced, and both the right and the remedy are unknown to equitable jurisprudence, the case is not appealable to this court, since the jurisdiction of this court is limited by the Constitution to chancery cases. The plaintiffs are persons interested in the matters defined by the provisions of Sections 12102-2 and 12102-4, General Code, and are authorized to bring the proceeding. Looking to the pleadings, it is apparent that the issues submitted in the Common Pleas Court are: 1. Reformation of the lease made under authority of the will of Henry Moff, deceased, which will had theretofore been admitted to probate in the Probate Court of Columbiana county wherein administration with the will annexed of the estate of Henry Moff, deceased, was granted; 2. Specific performance of a written contract to make a lease; 3. Construction of the will of Henry Moff, deceased; *Page 105 4. Declaration of rights of the parties under the lease as executed and as reformed. An action for specific performance is equitable in its character and belonged to the exclusive jurisdiction of courts of chancery before the adoption of the civil code and this character was not changed by its adoption. Hull v. Bell Bros. Co., 54 Ohio St. 228, 43 N.E. 584; Pierce, Assignee, v.Stewart, 61 Ohio St. 422, 56 N.E. 201. It may be stated generally that a petition for the reformation of an instrument is equitable in character. The remedy prescribed by the Declaratory Judgments Act is not exclusive. The civil action for reformation of written contracts is recognized as one of the distinctive fields of equity jurisdiction and presents a chancery case. Both before and since the constitutional amendment of 1912 the appealable character of a case has been held determinable from the pleadings and the issues made thereby. Hummer v.Parsons, 111 Ohio St. 595, 146 N.E. 62; Grapes v. Barbour,58 Ohio St. 669, 49 N.E. 306. It is true that the petition in this case seeks a construction of the will of Henry Moff, deceased, but this relief is incidental only to the real issue made by the pleadings, which is the reformation of the lease executed by the widow, devisees and executors under the will of Henry Moff, deceased. So, we need not determine whether in all cases an action for the construction of a will is a chancery proceeding, but it may be noticed that in the absence of statutory authority courts of equitable jurisdiction render declaratory judgments in certain circumstances, one of which is to construe trusts and wills. 3 Freeman on Judgments (5th Ed.), 2781, Section 1353. That an action for reformation of a contract is a chancery proceeding is held by the Supreme Court in *Page 106 the case of Bingham v. Nypano Rd. Co., 112 Ohio St. 115,147 N.E. 1. While the petition likewise prays that the contract of lease in question be declared a valid and binding lease between the parties, the determination of this issue depends upon the other issues made by the pleadings, and we think a fair construction thereof clearly shows that the issues made by the pleadings, as well as the ultimate relief sought, are equitable in principle and formerly cognizable in courts of chancery. We conclude that the action in the Common Pleas Court was in chancery, and is, therefore, appealable. We do not determine that every action brought under the Declaratory Judgment Act is appealable. The motion to dismiss the appeal in this case is overruled. Motion overruled. ROBERTS and CARTER, JJ., concur.