Gale v. Westlake

OPINION

By HORNBECK, J.

We are of opinion that the paramount relief sought upon the pleadings is equitable and one that is recognized as a proceeding in chancery, according to the usages thereof. The rights of the parties revolve about the option. If it is cancelled and rescinded, which would require the intervention of the equitable arm of the court, then the rights of both parties are determined. The legal action in damages is only incidental to the main question, which is whether or not the option should be can-celled and would only be given consideration when and after the principal question is determined.

The judgment of the trial court was rendered upon the issues drawn on the averments of the petition and the answer thereto and dismissal of the cross-petition .followed as a matter of law. So that the question which now comes to this court relates solely to the chancery proceeding. We will, upon trial, consider only the equitable phase of the case. If, upon hearing the case on appeal, we should determine that the plaintiff is not entitled to the relief sought in the petition, our judgment would be to deny the prayer of the petition and the legal cause of action arising upon the cross petition would he remanded to the Common Pleas Court for trial. The only question which comes before us is equitable.

We are satisfied that the motion to dismiss the appeal is not well taken and it will be overruled.

KUNKLE, PJ, and BARNES, J, concur.