Gantz v. Village of Louisville

• Decision Date: 23 May 1951
• Docket Number: No. 32473,32473
• Citation: 99 N.E.2d 308,155 Ohio St. 425
• Parties: , 44 O.O. 407 GANTZ et al. v. VILLAGE OF LOUISVILLE.
• Court: Ohio Supreme Court

Page 425

155 Ohio St. 425

99 N.E.2d 308, 44 O.O. 407

GANTZ et al. v. VILLAGE OF LOUISVILLE.

No. 32473.

Supreme Court of Ohio.

May 23, 1951.

Syllabus by the Court

Where a petition charges the maintenance of a nuisance, seeks abatement thereof and prays recovery of substantial money damages and where the equitable feature of the case is by agreement tried to the court, with the question of damages reserved, and from the judgment of the trial court appeal is taken to and is fully heard by the Court of Appeals and thereafter a jury trial is had on the questions of damages only, the plaintiff is not entitled to an appeal on questions of law and fact from the judgment of the trial court on the question of damages.

The Court of Appeals dismissed appellant's appeal on questions of law and fact and denied appellant the right to introduce testimony. From that judgment appellant has perfected its appeal as of right to this court.

The facts are stated in the opinion.

H. J. Shoemaker, Louisville, and Warren G. Smith, Canton, for appellant.

E. D. Bair, Alliance, and Virgil Mills, Canton, for appellees.

MIDDLETON, Judge.

The plaintiffs in the trial court, Glenn Gantz and Sylvia Gantz, are appellees herein and will be referred to as Gantz. The defendant, the village of Louisville, is the appellant herein and will be referred to as the village.

On August 5, 1947, Gantz filed a petition which purported to set forth three causes of action. As a first cause of action it was alleged, in detail, that the village had permitted the sewers to become clogged with dirt and refuse so as to cause water to be backed up on the premises of Gantz making their property unhealthful and unfit for occupancy. That condition, it was alleged, had existed for four years and constituted a nuisance. In the first cause of action, damages to the real property were alleged to have been suffered in the amount of $10,000.

As a second cause of action it was alleged that the conditions complained of damaged also the personal property and household furniture of Gantz to the extent of $5,000.

The third cause of action adopted the allegations of the first and second causes, except as to the allegations of damages. It was then alleged that the nuisance complained of 'constitutes a subsisting and abatable nuisance, for a redress for the continuance of which plaintiffs have no adequate remedy at law.'

The prayer was for $10,000 in the first cause of action, $5,000 in the second cause of action and 'that they may have an order restraining and enjoining defendant from maintaining said nuisance' and that it be abated.

To this petition the village filed a very extended answer containing seven separately numbered defenses. The answer denied that the village committed any of the acts charged against it and alleged that the conditions complained of were caused by negligent acts of Gantz and the occurrence of unusual and extraordinary rains which flooded the area.

The reply of Gantz, though rather elaberate in form, merely denied the charges made in the answer.

When called for trial on January 4, 1949, counsel agreed that the cause should be heard by the court, without a jury, to determine whether a nuisance existed and, if so, whether it should be abated; and that the question of damages should be reserved. The trial was so held, and evidence was taken on the issues joined as to the conditions complained of, the cause thereof and as to the responsibility of the village therefor. The trial judge, upon request, stated separately his conclusions of law and fact. His judgment was in favor of Gantz and against the village. The village was ordered to abate the nuisance.

The question of damages had been reserved but no request was made that the order of the court on the third cause of action be withheld until a jury trial was had on the issue of damages. On the contrary, the judgment was journalized and the village appealed therefrom. The notice of appeal recited that it was both on questions of law and on questions of law and fact. It appears that the latter was in effect abandoned although a bill of exceptions was filed. An assignment of errors was filed, briefs were prepared, and the cause was argued and submitted as an appeal on questions of law.

On October 7, 1949, the Court of Appeals rendered a comprehensive opinion saying in part:

'As to the facts in this case, from a study of this record we find ourselves in accord with the conclusions reached by the trial court in his opinion * * *.

'We find, as the trial court found, that a nuisance did exist and a very serious nuisance, which had its origin 'in the sanitary system of the village.''

Thus it appears that the entire issue raised in the third cause of action was heard and decided by the Court of Appeals. There was nothing left to try but the issue of damages.

Subsequently, in January 1950, pursuant to the

agreement of counsel previously mentioned, a jury was impaneled and trial was had on the issue of damages. A verdict for Gantz in the sum of $5,000 resulted.

Then a second appeal to the Court of Appeals was taken by the village and it is that appeal which precipitated the question now before this court. That notice of appeal to the Court of Appeals was filed April 6, 1950, and recited that it was on questions of law and fact and on questions of law. An appeal bond was given and a bill of exceptions was filed but no assignments of error or briefs were filed in accordance with rule 7 of the court, as applying to appeals on questions of law. Gantz filed a motion to dismiss the appeal, arguing that the equity matter had been finally disposed of so that no right of appeal on questions of law and fact existed, and that appeal on questions of law was not properly perfected. The village contends that the case was essentially one in chancery, that the chancery character prevailed notwithstanding the postponement of the jury trial until after the question of existence and abatement of nuisance had been carried to the Court of Appeals, and that the village was entitled to appeal on questions of law and fact from the judgment based on the jury's verdict as to the amount of damages and have a trial de novo upon the same and additional evidence.

The Court of Appeals dismissed the appeal on questions of law and fact but retained the cause as an appeal on questions of law. From that dismissal of the appeal on questions of law and fact the village has perfected its appeal to this court.

It is well settled that the question as to whether a proceeding is a case in chancery or an action at law is to be determined from the pleadings and from the issues made thereby. Hummer v. Parsons, 111 Ohio St. 595, 146 N.E. 62; Wall v. Dayton Federation Co., 121 Ohio St. 334, 168 N.E. 847; J. P. Loomis Coal & Supply Co. v. Garchev, 123 Ohio St. 316, 175 N.E. 456; Nordin v. Coulton, 142 Ohio St. 277, 51 N.E.2d 717.

If a proceeding is essentially one in chancery although involving incidental or ancillary issues triable to a jury the court will retain it as a chancery case and administer full relief both legal and equitable so far as it pertains to the same transactions or subject matter, and such case is appealable on questions of law and fact. Kiriakis v. Fountas, 109 Ohio St. 553, 558, 143 N.E. 129; Clark v. Clark, 110 Ohio St. 644, 656, 144 N.E. 743; Hummer v. Parsons, supra.

Likewise, if a proceeding is essentially an action at...