| Oh. Circ. Ct., Clark | Dec 15, 1892
This case is submitted to us upon a motion to dismiss the appeal upon two grounds: First, that no bond for the appeal was given as required by statute; and second, that the cause is not appealable. The petition asks a judgment against the defendant upon two promissory notes, of which copies are set forth in the petition, and the foreclosure of a mortgage given to secure the same. The answer in substance is, that the notes and mortgage described in the petition were given to the executors of ¥m. Hardaere, predecessors of the plaintiff, for the balance of the purchase-money of the land described in the petition; that this land was sold by the executors to the defendant under and by virtue of the provisions of the will, and not otherwise; that defendant paid them $1,600.00 on the purchase-price at the time of the sale; that thereafter, upon suit brought, the will of ¥m. Hardaere was set aside, and his executors turned over to the plaintiff upon his appointment as administrator, the money, notes and mortgages in their hands, and asks a judgment for the money so paid to the executors. It further alleges that upon the death of Wm. Hardaere his real estate descended to certain persons, whose names are given, as his heirs at law,, who claim to have an interest and estate in the premises, and prays that they may be made parties and required to set up their interest; that by the deed of
The demurrer of plaintiff to this answer was sustained by the court below, and thereupon a judgment for $3,779.00, was entered in favor of the plaintiff, and an order that unless that sum was paid within ten days, au order of sale should issue The defendant gave notice of his intention to appeal, and the court fixed the amount of the appeal bond at $150.00, and a bond in that amount was given. This bond was insufficient in amount, as under Rev. Stat., sec. 5230, the bond should have been in double the amount of the judgment. But this would not authorize this court to dismiss the appeal, at least not until an opportunity to amend the bond in accordance with the provisions of the Rev. Stat., sec. 5233, had been given appellant, and he had failed to comply with the order •of the court in that regard.
"We think the motion should be sustained upon the ■other ground. This action was brought under the provisions of Revised Statutes, section 5021, for a judgment for the money claimed to be due upon the notes, and to foreclose the mortgage given to secure the payment of the same. In such case, the statute provides: “Such proceedings shall be had, and judgment rendered thereon, as in a civil action for the recovery of money only." The answer in this case presents no equitable defense, for it asks for a judgment for the money paid upon the property, and setting up the outstanding claims of the heirs of Wm. Hardacre, pleads want of consideration for the notes by reason of the failure of the title. The heirs are not made parties, and file no pleadings. The
In the cáse at bar the plaintiff insists upon, his money judgment, and the only issue of fact was joined upon that branch of the case, and the fact that he also sought the foreclosure of his mortgage in a separate cause of action, would not deprive the parties of a jury trial upon that issue; and from the judgment rendered thereon, no appeal would lie. Brundridge v. Goodlove, 30 Ohio St. 374.
But in our judgment, there exists a stronger reason for sustaining this branch of the motion, for we are of the opinion that a civil action, brought under the provisions of section 5021, against a party personally liable for the debt secured by the lien, is by that section governed in all respects, after its