Opinion
No. 29626
Decided December 1, 1943.
Actions — Nature of case determined from pleadings and issues — Action at law where equitable redress merely incidental — No appeal on questions of law and fact — Directed verdict in case in which primary relief sought was legal.
1. The nature of a case is determined from the pleadings and the issues presented.
2. It is equitable if it is necessary to determine first whether the plaintiff is entitled to equitable relief before legal redress can be granted; but if the primary or paramount relief sought is legal and the equitable redress merely incidental, it is an action at law.
3. When a trial court directs a verdict for the defendant in a case in which the primary relief sought is legal, the plaintiff may not appeal to the Court of Appeals on questions of fact and law merely because he asks incidental equitable relief which cannot be granted alone.
APPEAL from the Court of Appeals of Cuyahoga county.
In the Court of Common Pleas the plaintiff filed an amended petition consisting of three causes of action. In the first the plaintiff asks a personal judgment against the defendant for an amount alleged to be due under a contract for the construction of a house. In his second cause of action he asks a personal judgment for extra work performed and extra materials furnished by him in constructing the house for the defendant. In his third cause of action the plaintiff claims a mechanic's lien upon the defendant's property and asks foreclosure.
At the conclusion of the plaintiff's evidence the trial court granted the defendant's motion to direct a verdict in the latter's favor. A cross-petition filed by the defendant was dismissed without prejudice and at his costs. The plaintiff's motion for a new trial was overruled, and a judgment was rendered for the defendant.
The plaintiff appealed to the Court of Appeals on questions of fact and law. He then requested leave to file a further amended petition and to make new parties defendant. This was denied, and the appeal on questions of law and fact was dismissed but it was retained on questions of law alone.
The case is in this court for review as a matter of right.
Mr. Arthur P. Gustafson, for appellant.
Mr. John J. Tetlow and Mr. John J. Kennedy, for appellee.
The plaintiff contends that this is a chancery case and that therefore the Court of Appeals was in error in refusing a retrial on questions of law and fact.
It is of course true that the plaintiff's third cause of action sounds in chancery, since the foreclosure of a mechanic's lien is sought. However, the first two causes of action are conceded to be purely legal in their nature. Nothing but a simple, personal judgment for money only is involved. This is the primary or paramount relief asked by the plaintiff. Until he is found entitled to a judgment in some amount, no foreclosure can be had. The trial court held that the plaintiff introduced no evidence tending to prove that the defendant was indebted to him. Hence, the question of foreclosure was not reached.
Under the general rule the nature of a case is determined from the pleadings and the issues presented thereby. It is equitable if it is necessary to determine first whether the plaintiff is entitled to equitable relief before legal redress can be granted. But, conversely, if the primary or paramount relief is legal and the equitable redress merely incidental, it is an action at law.
Under the circumstances of this case the Court of Appeals was correct in refusing a review on questions of fact and law and in retaining the appeal for a review on questions of law alone. It becomes unnecessary to discuss the second question raised by the plaintiff, and the judgment must be affirmed.
Judgment affirmed.
MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.