Thomas v. Deibel

OPINION

By McCURDY, J.

This case comes into this court on appeal instituted by Tena Fi’ied under the style of this case captioned above, and was upon error proceedings prosecuted on behalf of Tena Pried in case No. 14512. Before submission to the Court of Appeals the plaintiff, H. W. Thomas, filed a motion to dismiss the appeal. This motion will be overruled on authority of Hummer v Parsons, 111 Oh St 595:

“An action to foreclose a lien upon real estate and to subject property pledged to the satisfaction thereof, whether such lien is a mortgage or a mechanic’s lien, is a chancery proceeding and is appealable.”

While it is true in this case that the principal issue presented here is the matter of the agency and in event personal judgment against Tena Pried is justified then the orders made in relation to the mechanics’, liens are proper, yet we find from the proceeding that the second cause of action in the plaintiff’s petition is denied by the answer of Tena Pried and the liens set forth in the two cross-petittions are likewise denied. Also in their testimony Dr. Fried and Tena Pried deny the serving of notices on them. It is to be determined from the pleadings and from the issue made 1 hereby whether this proceeding is an action in chancery or a suit at law.

“It is elementary that where a court of equity obtains jurisdiction of an action it will retain it and administer full relief, legal or equitable, so far as it pertains to the transaction or the subject-matter involved therein.”

Ill Oh St 600.

Accordingly, appeal to the Court of Appeals in this case is proper and we will now proceed to take jurisdiction of the case and dispose of it on appeal, and the error proceedings prosecuted on the same subject matter in cause No. 14512 will be dismissed.

This cause is presented to us on the record of the trial of the case in the court below. The record discloses that all the mechanics liens in question were properly perfected, the principal question being whether or not they attach to and are a charge against the premises in question, title to which is vested in Tena Pried, and this, of course, leads us to a consideration of the evidence in relation to the contract for the remodeling of these premises as between the contractor, H. W. Thomas, and the owner of the premises, Tena Pried. We do not consider it necessary to review this evidence herein.

After a careful review of the record we are convinced that there has been sufficient proof of agency under all of the facts and circumstances as shown by the evidence, and that the plaintiff has established his right to recover a personal judgment in the amount prayed for in the first cause of action by a preponderance of the evidence. We find it necessary to arrive at the same conclusion as the jury arrived at in the court below.

Accordingly, judgments may be entered in this case on the petition of H. W. Thomas and on the cross-petitions of Trebing Manufacturing Company and Reed & Campbell as they are entered in the court below, and this being a suit for foreclosure of a mechanic’s lien, all proceedings in which have not been completed, the cause will be remanded to the Court of Common Pleas for all necessary further proceedings according to law.

MIDDLETON, PJ, and BLOSSER, J, concur.