Dillon v. Gaker , 57 Ohio App. 90 ( 1937 )

This case was re-argued on the question as to whether the case was one in chancery and appealable on questions of law and fact, or one of law.

On the conclusions reached, the judgment in the case will be the same whichever way the case is presented. However, it was desired that the court pass upon the character of the case.

One member of the court is of the opinion that declaratory judgments are provisions of the statute, and that they are of necessity based on questions of law only.

The majority of the court is of the opinion that the character of the case upon which a declaratory judgment is sought determines whether it is a chancery or a law case.

In the instant case the contract upon which the declaratory judgment is sought is in writing, and sets forth a restriction contained in the deed. This restriction is the basis of the action. If the decision resulted in a decree finding the restrictions in the deed enforceable, it would determine the right to maintain a mandatory injunction if a violation of this restriction was attempted. The matter primarily involves the construction of a written agreement. All of these questions have always been cognizable in chancery. See, Kochs,Admx., v. Kochs, 49 Ohio App. 327, 197 N.E.2d 255; S.S. Kresge Co. v. B.D.K. Co., 52 Ohio App. 101, 3 N.E.2d 529.

The majority of the court being of the opinion that the character of the case determines the standing, notwithstanding a declaratory judgment is sought, makes the case appealable on questions of law and fact.

A decree may be entered in accordance herewith.

Decree accordingly.

MATTHEWS, J., concurs in the conclusion that the action is a chancery case, but dissents on other grounds.