Converse v. Hawkins , 31 Ohio St. (N.S.) 209 ( 1877 )

By the Court.

The district court erred in dismissing the ■appeal. The original petition was in the nature of a bill in -.equity for an injunction, and, incidentally, for an account. There was but one cause of action stated. The right of the plaintiff to an account in the action depended on his right to an injunction. Neither party had a right to demand a trial by jury. The case does not fall within the act of Eebruary 10, 1864, to juevent multiplicity of actions, wherein an aetion to enforce a lien, and for a personal judgment for the amount claimed to be due, is put on the footing of an action for the recovery of money only. The cause of aetion stated in the petition below was not for the recovery of money only, and was, therefore, appealable, under section 5 of the act of April 12, 1858, as amended May 16, 1864 (S. & S. 589).

"Whether the plaintiff belo.w was entitled to relief in equity, before he had established before a jury his right to the use of the alleged road, in an action for the recovery of damages only, is a question not before us. That question could only ai’ise in the district court, by entertaining the appeal. This is a matter relating to the merits of cause, and not to the jurisdiction of the court.

Motion granted, judgment of district court reversed, and cause remanded.