Campbell v. Eames

Smith, J. The amended and supplemental petition in this case, on which trial was had in the court of common pleas, contained three causes of action. By the second, the plaintiff sought for a personal judgment against-Eames on a note executed by the latter to Campbell for $500. The first was for a foreclosure of a mortgage given by Eames and wife to plaintiff to secure said note, and the third set up a judgment obtained by plaintiff against Eames, in another action, which it was claimed was a lien on the mortgaged premises. Henry Klein, L. H. Pummill and others were made parties defendant, as asserting liens on the same premises. Eames and wife filed no answer, but Klein and Pummill filed answers and cross-petitions setting up their liens on the real estate mortgaged, and contesting the validity of the mortgage of Campbell, and claiming priority over the sáme. The question as to the consideration of the Campbell note was tried to a jury, on an issue out of chancery, which found in favor of Campbell, and the court by its decree found that his mortgage lien was a good one, and had priority over the liens of Klein and Pummill. From this decree Klein, Pummill and Eames, severally and separately appealed. We are of the opinion that Eames was not entitled to appeal.- As to him, a personal judgment having been sought on one cause of action, and a decree of foreclosure of the mortgage given to secure the debt in another cause of action, [562] and on the authority of Ladd v. James, 10 Ohio St., 438, and other oases, it must be held that Eames, being entitled to demand a trial by jury, he oould not appeal. Thos. F. Shay, Richard E. Werner and L. M. Hadden, for Plaintiff. Wm. E. Bundy, for Defendants. The rules as to the other parties appealing is different. Campbell had no claim against them, on which he asked for a personal judgment against them. The controversy between them was of an equitable nature, viz.: Whether the mortgage of Campbell was a subsisting lien on the property. Bazell v. Belcher & Doral, 31 Ohio St., 572. As to this neither of those parties was entitled to a trial by jury, and they oould therefore appeal. The motion as to Klein and Pummill will be overruled.