Administrator of Reed v. Reed ( 1874 )

Welch, J.

The single question presented is whether this was an action “ for the recovery of «money only.” We think it was not, and that, therefore, the District Court erred in dismissing the appeal.

I am not at all surprised that the courts below were puzzled in determining to what class this action belongs. If we look to the prayer of the petition alone, it appears to be an action for the recovery of money only. But if we look to the case made, or facts stated in the petition, it plainly appears to be an action ’ to set aside a fraudulent settlement, and to compel an account by an administrator or trustee. The case made in the petition, as well as the prayer, must be looked to in determining the character of the action. ■ In view of the facts stated, the prayer of the petition must be understood merely as a prayer that the amount to be found due from the defendant, after setting aside the fraudulent settlement, and compelling him to come to a just account, shall be recovered by the plaintiff. The action is not one in which a jury trial is demandable as of right, and the parties had the right of appeal. The judgment of the District Court dismissing the appeal and remanding the cause, and also- the subsequent proceedings in the Common Pleas, will therefore be reversed and set aside.

Judgment accordingly.

McIlvaine, C. J., White, Rex, and Gilmore, JJ,, concurred.