Keller v. Wenzell , 23 Ohio St. (N.S.) 579 ( 1873 )

By the Court.

We think neither of these grounds of error can be maintained.

Under the statute of February 19, 1864 (S. & S. 575), this was clearly an action in which a jury trial was demandable of right. The plaintiff “ asked, in his petition, a judgment for the money claimed to be due,” and issues of fact touching his right to such judgment were joined.. The fact that no personal judgment was finally taken by the plaintiff for the money due does not vary the case. The plaintiff’s petition showed a right to such a judgment,, and issue was taken on the case thus made.

As to the second ground of error, namely, that the cause-was not ordered to be remanded to the Common Pleas, we think it is enough to say that the plaintiff asked for no such order. In simply dismissing the appeal there was no-error. The judgment of the court was right so far as it went. The appellant might, if he chose, waive his right to have the cause remanded for a second trial, or to enter-on the journal his demand for such second trial after the cause had been so remanded. It is by no means clear that the District Court may not yet make the order remanding the cause. "Whether that can be done, or whether a certified copy of the.judgment of the District Court, showing ;that the appeal was dismissed on the ground that the appellant was entitled to a second trial, would not be all that is necessary to enable the Common Pleas to proceed in the cause, we need not now decide. It is enough to say that we see no error in the judgment of the District Court ^dismissing the appeal.

Motion overruled.