Dillon v. Gaker

OPINION By HAMILTON, J. This case was re-argued on the question as to whether or not the case was one in chancery and appealable on questions of law an'd fact, or one of law. On the conclusions reached, the judgment in the case will be the same which ever way the case is presented. However, it was desired that the court pass upon the character of the case. One member of the court is of opinion that declaratory judgments are provisions of the statute, and that they are of necessity based on question? of law only. The majority of the court is of opinion that the character of the case upon which a declaratory judgment is sought determines whether or not it is a chancery or a law case. In the instant case the contract upon which the declaratory judgment is sought is in writing, and sets forth a restriction contained in the deed. This restriction is the basis of the action. If the decision resulted in a decree finding the restriction in the deed enforceable, it would determine the right to maintain a mandatory injunction, if a violation of this restriction was attempted. The matter primarily involves the construction of a written agreement. All of these questions .have always been cognizable in chancery. See: Kochs, Admrx. v Kochs et, 49 Oh Ap 327 (19 Abs 221); Kresge Co. v B. D. K. Co., 52 Oh Ap 101 (21 Abs 514). The majority of the court being of the opinion that the character of the case dei ermines the standing, notwithstanding a declaratory judgment is sought, makes the case appealable on questions of law and fact. A decree may be entered in accordance herewith. MATTHEWS, J, concurs in conclusion that action is a chancery case, but dissenting on other grounds.