Iron Metal Co. v. City of Dayton

Full title: DUBERSTEIN IRON METAL CO., APPELLEE v. CITY OF DAYTON, APPELLANT

Court: Court of Appeals of Ohio

Date published: Apr 27, 1960

176 N.E.2d 328 (Ohio Ct. App. 1960)

176 N.E.2d 328

Opinion

No. 2578

Decided April 27, 1960.

Appeal — Declaratory judgment — Not appealable on questions of law and fact, when — Section 2501.02, Revised Code.

An action in which the primary and paramount relief sought is a declaratory judgment and where all other relief is ancillary in nature is not within one of the classes enumerated in Section 2501.02, Revised Code, in which an appeal on question of law and fact may be taken; and an appeal in such case will be retained on questions of law only.

APPEAL: Court of Appeals for Montgomery County.

Messrs. Kusworm Kusworm, for appellee.

Mr. Herbert S. Beane, city attorney, and Mr. Joseph P. Duffy, for appellant.

WISEMAN, P. J.

This cause is submitted on motion of the appellee for an order dismissing the appeal on law and fact and retaining it as an appeal on questions of law only.

Essentially, the action is one in which the primary and paramount relief sought is a declaratory judgment. All other relief is ancillary in nature.

Whether an appeal may be taken on questions of law and fact is now controlled by Section 2501.02, Revised Code, as amended effective October 4, 1955. The former chancery test is no longer applicable. The above cited statute lists the classes of actions in which an appeal on law and fact may be taken. Unless the "primary and paramount relief" sought falls in one of the designated classes, the statute provides that "the Court of Appeals shall have jurisdiction to proceed as in an appeal on questions of law only." Inasmuch as this action does not fall in one of the designated classes, the motion to dismiss the appeal on questions of law and fact will be sustained, and the appeal retained as an appeal on questions of law. Section 2505.23, Revised Code.

Inasmuch as the appellant filed a bill of exceptions in this court on March 24, 1960, and assignments of error and briefs on March 25, 1960, the court orders same to be refiled in conformity with the provisions of Rule V D, of Rules of the Courts of Appeals. It is apparent that the appellant treated this appeal as an appeal on questions of law only.

Judgment accordingly.

CRAWFORD and KERNS, JJ., concur.