Weinreich v. Franklin Savings & Loan Co.

OPINION

By THE COURT:

Submitted on motion of the appellee for an order of this Court upon two grounds.

1. Declaring that the appeal herein be received on questions of law and not, as noted, on questions of law and fact.

2. That the Appellants be required to file a Bill of Exceptions according to law.

We have examined the Second Supplemental Petition of the plaintiff and are of the opinion that the principal relief sought is legal and not of equitable cognizance. The prayer for an accounting is incidental to the main question, which is whether or not the interest on the claims of clients represented by the plaintiff should be computed as alleged in the Supplemental Petition. If that should' be decided in favor of‘the plaintiff, then the matter of accounting would be but an incident, and would require the application of no-equitable principle, because the rights of every claimant would be subject to specific determination from the facts and the accounts now in the possession of the defendant.

Motion to dismiss the appeal.on questions of law and fact will, therefore, be sustained and the appeal will proceed as upon questions of law. "

Inasmuch as the cause may not be tried on the facts, thirty days from the Entry journalizing this decision will be given appellant within which to have a Bill of Exceptions prepared, settled and allowed in the Common Pleas Court, and the briefs of counsel will be due under the rules of this Court applicable to appeals on questions of law.

If- the legal issues raised by the pleadings can be exemplified from the pleadings, entries or agreed statement of facts in the trial court, without a Bill of Exceptions setting forth any evidence that may have been taken, it may not be necessary to have a formal Bill of Exceptions.

Counsel who are conversant with developments of the case will know whether a transcript of the testimony will be required.

HORNBECK, GEIGER and NICHOLS, JJ., concur.