Doane v. Fleming

BY THE COURT. These proceedings were had in the Court of Common Pleas under the partition act; 29 O. L. 254. In such ■cases it has been often decided that no appeal lies. None is given by the statute, and the case is not embraced in the general clause for appeals. But it is claimed that the proceedings below were in chancery, and therefore may be appealed. It is true, the partition law provides only a cumulative remedy in partition, and does not take away the jurisdiction of chancery; and it is also true, that some of the orders in the Common Pleas are worded like proceedings in chancery; but the original petition is addressed to the court as a court of law. That, 'we think, must govern, as by that the petitioner selects his tribunal. The orders in vacation are the acts of the clerk, and his notions of form will not determine the jurisdiction of the court. The appeal is quashed. [Appeal lies in chancery partition cases, but not in statutory partitions, approved, and followed. Hoy v. Hites, 11 O. 254.]