Ireland v. Cheney , No. 25041.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtWILLIAMS
Citation196 N.E. 267,129 Ohio St. 527
PartiesIRELAND v. CHENEY.
Docket NumberNo. 25041.
Decision Date29 May 1935

129 Ohio St. 527
196 N.E. 267

IRELAND
v.
CHENEY.

No. 25041.

Supreme Court of Ohio.

May 29, 1935.


Error to Court of Appeals, Wood County.

Action by Edward Ireland against Harry O. Greer, wherein George A. Cheney, by leave of court, was made a party defendant and filed a cross-petition. To review a judgment of the Court of Appeals reversing a judgment of trial court and rendering a judgment for the cross-petitioner, the plaintiff brings error.-[Editorial Statement.]

Affirmed.

This proceeding involves a judgment of the Court of Appeals allowing attorney fees to George A. Cheney out of funds in the hands of the clerk of the court. Edward Ireland, while standing in the highway and examining the gasoline tank in his automobile to learn if he had sufficient gasoline, received injuries as the result of being struck by an automobile driven by one Harry O. Greer. George A. Cheney, defendant in error, after making a contract with Edward Ireland, plaintiff in error in this proceeding, was ignored by the latter, who represented by E. M. Fries, brought an action against Greer in the court of common pleas of Wood county, resulting in a judgment in favor of the injured man for $5,000. Error was not prosecuted, and the full amount of the judgment was paid to the clerk of the court of common pleas. Thereupon, George A. Cheney, the defendant in error here, by leave of court, was made a party defendant in the personal injury action and filed a cross-petition. The plaintiff, Ireland, was enjoined from drawing out more than one-half of the judgment of $5,000, and the $2,500 remains in the hands of the elerk awaiting the outcome of this litigation. The cross-petition was changed by amendments and the cause finally came on for trial in the court of common pleas on the second amended answer and cross-petition of George A. Cheney, the answer of the plaintiff, Edward Ireland, and the reply. The cause was submitted to a jury on the issues so made, over the objection and exception of the cross-petitioner who maintains that the action was one in chancery. The jury on this submission returned a verdict in favor of the plaintiff, Edward Ireland, and against the cross-petitioner, and judgment was entered thereon.

Thereupon the cross-petitioner filed a petition in error in the Court of Appeals and also perfected his appeal. The plaintiff filed a motion to dismiss the appeal on the ground that this cause was not appealable and on consideration the motion was overruled and trial was had on appeal. After hearing the evidence the Court of Appeals rendered judgment in favor of cross-petitioner in the sum of $2,500 less court costs made in the proceeding and ordered such costs to be discharged out of the $2,500 in the hands of the clerk and the balance paid to the cross-petitioner.

Thereupon Edward Ireland, as plaintiff in error here, filed in this court a petition in error as of right and the defendant in error here filed a motion to dismiss the petition in error upon the ground that no debatable constitutional question was involved. This motion was overruled and later the cause was argued and submitted on its merits.



Syllabus by the Court.

[Ohio St. 527]1. Since the terms ‘equity’ and ‘chancery’ are synonymous and interchangeable in meaning, appealable cases under section 6, article IV of the Constitution of Ohio, providing that the courts of appeals shall have ‘appellate jurisdiction in the trial of chancery cases,’ are those which are equitable in their nature and recognized as chancery cases prior to the adoption of the Code of Civil Procedure.

2. Where the principal, primary, and paramount relief sought, as shown by the pleadings, is equitable, the cause is one in chancery notwithstanding the fact that as incidental thereto the court is compelled to find what amount, if any, is due and owing to the person seeking the relief.

3. Where a judgment recovered by plaintiff in a suit for personal injury and damage to automobile is paid to the clerk of court, and thereafter an attorney, by leave of court, is made a party and files a cross-petition praying that he be adjudged a lien upon the fund and an interest therein by way of equitable assignment in accordance with the terms of a contract by which he was to be paid a percentage of the amount received by plaintiff, by suit or settlement of his claim for such personal injury and damage, as compensation for services to be rendered in connection therewith, but does not ask for personal judgment, the action is in chancery even though the defendant is made that no binding contract of employment was entered into.


[Ohio St. 529]

[196 N.E. 268]

Edward M. Fries and Alva W. Bachman, both of Bowling Green, for plaintiff in error.

Boggs & Chase, of Toledo, and Charles L. Foster, of Bradner, for defendant in error.


WILLIAMS, Judge.

The sole question presented to this court is whether the Court of Appeals erred in overruling the motion to dismiss the appeal on the ground that the cause was not appealable.

The jurisdiction of the Court of Appeals is fixed by article IV, section 6, of the Constitution of Ohio, and cannot be changed by statute. Cincinnati Polyclinic v. Balch, 92 Ohio St. 415, 111 N. E. 159. By the terms of this constitutional provision the jurisdiction of that court on appeal from the court of common [Ohio St. 530]pleas is expressly limited to ‘trial of chancery cases.’ Wagner v. Armstrong, 93 Ohio St. 443, 113 N. E. 397, 398. This rule has been consistently followed in subsequent cases. It is also established in this state that the fundamental basis for determining appealability is found in the issues made by pleadings and the relief prayed for therein. 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. It is therefore necessary to look to the pleadings and if it appears therefrom that the case is one in chancery it is appealable, otherwise not.

The second amended petition of the cross-petitioner George A. Cheney is based on alleged written contract, the substance of which is set forth therein and a copy of which is attached thereto. The contract reads as follows:

‘For and in consideration of services rendered and to be rendered by George A. Cheney to and for me, in the suit, compromise and litigation of a certain claim for damages, which I have against Harry O. Greer.

‘Now therefore, I do hereby employ George A. Cheney as my attorney at law, to bring a suit or effect a settlement for, the damages which I have sustained by reason of personal injuries and property damage.

‘I also hereby agree to give unto said George A. Cheney, as his pay, an amount equal to fifty (50) per cent. of whatever

[196 N.E. 269]

amount is received by me in case of trial or settlement, of the above entitled cause of action; and I hereby assign unto said George A. Cheney, said 50 per cent. out of any moneys received by me, either by way of trial, or settlement. If however, nothing is recovered by way of suit, compromise or settlement of the above entitled claim then said George A. Cheney is to receive nothing for legal services rendered.’

In addition to setting out the substance of the contract,[Ohio St. 531]the pleading set forth that the answering defendant, George A. Cheney, was at all times mentioned an attorney at law duly authorized and admitted to practice law in all the courts of Ohio; that he at all times stood ready, able, and willing to complete his part of said contract of employment and so notified the plaintiff, Edward Ireland; that the plaintiff without any cause attempted to discharge the answering defendant; that thereafter plaintiff brought suit on his aforesaid claim through one E. M. Fries, attorney at law; and that by reason thereof plaintiff has breached and broken the contract with the answering defendant to his damages in the sum of one-half of whatever sum is recovered, to wit, $2,500. The pleading concludes with the following prayer: ‘Wherefore, this answering defendant prays that the court find that he has an interest in and a partial assignment of the cause of action prosecuted in the above entitled cause by the plaintiff against the defendant, Harry O. Greer, to the extent of two thousand five hundred dollars ($2500.00), the amount due on the percentage basis provided by the parties in their said contract; that this answering defendant be decreed an interest in and a lien upon the fund which the plaintiff may derive either by way of suit, compromise or settlement of the above captioned cause for the payment to this answering defendant of such compensation as may be fixed and found due him by the court under the terms of said written contract; that the plaintiff, Edward Ireland, or any one else acting on his behalf, be enjoined and restrained from drawing any money or funds which may be paid into this court in the above captioned cause in satisfaction of any judgment rendered therein from the clerk of this court until the rights of this answering defendant under the written, contract set forth and described herein have been fully heard and determined by the court; that the funds now in the possession of the clerk of courts and which were paid [Ohio St. 532]to him in satisfaction of the judgment rendered in the above entitled cause, be declared held in trust for the benefit of this answering defendant and that he be decreed to be the owner thereof and entitled to have the same paid over to him forthwith, and for...

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  • First Nat. Bank of Southwestern Ohio v. Miami University, Nos. CA96-03-047
    • United States
    • United States Court of Appeals (Ohio)
    • June 2, 1997
    ...Ohio Supreme Court's decisions in Nordin v. Coulton (1943), 142 Ohio St. 277, 27 O.O. 219, 51 N.E.2d 717, and Ireland v. Cheney (1935), 129 Ohio St. 527, 2 O.O. 523, 196 N.E. 267. The court held in Nordin, paragraph two of the syllabus, that an action is equitable if the right to equitable ......
  • Winningham v. North American Resources, No. C-1-91-447.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • October 29, 1992
    ...51, etc., 35 Ohio St.2d 197, 299 N.E.2d 686 (1973), cert. denied, 415 U.S. 994, 94 S.Ct. 1597, 39 L.Ed.2d 892 (1974); Ireland v. Cheney, 129 Ohio St. 527, 196 N.E. 267 (1935). The May court reasoned 812 F. Supp. 1473 that the right to a jury includes the opportunity of a plaintiff to have a......
  • Mories v. Hendy
    • United States
    • United States Court of Appeals (Ohio)
    • February 17, 1965
    ...after the legal issue has been determined. J. P. Loomis Coal & Supply Co. v. Garchev, 123 Ohio St. 316, 175 N.E. 456; Ireland v. Cheney, 129 Ohio St. 527, 196 N.E. 267; Nordin v. Coulton, Page 353 142 Ohio St. 277, 51 N.E.2d 717; Borton v. Earhart, 144 Ohio St. 334, 59 N.E.2d 37; Meyer v. M......
  • Connelly v. Balkwill, No. 33473
    • United States
    • United States State Supreme Court of Ohio
    • January 13, 1954
    ...113 N.E. 397, approved and followed.)' Also in this connection we refer to paragraphs one and two of the syllabus in Ireland v. Cheney, 129 Ohio St. 527, 196 N.E. 267, which '1. Since the terms 'equity' and 'chancery' are synonymous and interchangeable in meaning, appealable cases under sec......
  • Request a trial to view additional results
11 cases
  • First Nat. Bank of Southwestern Ohio v. Miami University, Nos. CA96-03-047
    • United States
    • United States Court of Appeals (Ohio)
    • June 2, 1997
    ...Ohio Supreme Court's decisions in Nordin v. Coulton (1943), 142 Ohio St. 277, 27 O.O. 219, 51 N.E.2d 717, and Ireland v. Cheney (1935), 129 Ohio St. 527, 2 O.O. 523, 196 N.E. 267. The court held in Nordin, paragraph two of the syllabus, that an action is equitable if the right to equitable ......
  • Winningham v. North American Resources, No. C-1-91-447.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • October 29, 1992
    ...51, etc., 35 Ohio St.2d 197, 299 N.E.2d 686 (1973), cert. denied, 415 U.S. 994, 94 S.Ct. 1597, 39 L.Ed.2d 892 (1974); Ireland v. Cheney, 129 Ohio St. 527, 196 N.E. 267 (1935). The May court reasoned 812 F. Supp. 1473 that the right to a jury includes the opportunity of a plaintiff to have a......
  • Mories v. Hendy
    • United States
    • United States Court of Appeals (Ohio)
    • February 17, 1965
    ...after the legal issue has been determined. J. P. Loomis Coal & Supply Co. v. Garchev, 123 Ohio St. 316, 175 N.E. 456; Ireland v. Cheney, 129 Ohio St. 527, 196 N.E. 267; Nordin v. Coulton, Page 353 142 Ohio St. 277, 51 N.E.2d 717; Borton v. Earhart, 144 Ohio St. 334, 59 N.E.2d 37; Meyer v. M......
  • Connelly v. Balkwill, No. 33473
    • United States
    • United States State Supreme Court of Ohio
    • January 13, 1954
    ...113 N.E. 397, approved and followed.)' Also in this connection we refer to paragraphs one and two of the syllabus in Ireland v. Cheney, 129 Ohio St. 527, 196 N.E. 267, which '1. Since the terms 'equity' and 'chancery' are synonymous and interchangeable in meaning, appealable cases under sec......
  • Request a trial to view additional results

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