Mories v. Hendy

• Decision Date: 17 February 1965
• Citation: 204 N.E.2d 699,1 Ohio App.2d 349
• Parties: , 30 O.O.2d 352 MORIES, Appellee, v. HENDY, Appellant.
• Court: Ohio Court of Appeals

Page 349

1 Ohio App.2d 349

204 N.E.2d 699, 30 O.O.2d 352

MORIES, Appellee, v. HENDY, Appellant.

Court of Appeals of Ohio, Third District, Marion County.

Feb. 17, 1965.

Moore, Myers, Parsell & Firstenberger, Marion, for appellant

Carhart & Stout, Marion, for appellee.

GUERNSEY, Judge.

This appeal came on to be heard on an order to show cause why it should not be dismissed for want of a final appealable order. At the outset of the hearing the appellee orally moved that the appeal be dismissed.

As a stated first cause of action in his third amended petition filed on February 4, 1961, the plaintiff, Charles D. Mories, alleged the collision of a vehicle operated by him with one operated by the defendant, James P. Hendy, appellant herein; alleged the execution thereafter of a purported release procured through fraudulent representations or executed as a result of mutual mistake of the parties; and prayed that the purported release be cancelled and set aside. Plaintiff's stated second cause of action was for damages for the personal injuries incurred by him in the collision alleged to have been proximately caused by the negligence of the defendant.

By his amended answer filed March 5, 1962, the defendant joined issue, and the action was thereupon tried to the court without a jury, solely on the issue as to the validity of the release.

On September 2, 1964, upon suggestion of the death of of the plaintiff, the action was revived in the name of his administratrix, Catherine M. Mories, appellee herein. On that date a journal entry was filed ordering the alleged release set aside. A motion for new trial concurrently filed was thereupon overruled. It is from these latter orders, or judgments, that defendant has attempted to appeal on questions of law and fact to this court.

The determinative issue raised at this time is whether in a case wherein a stated cause of action for the rescission and cancellation of a release is joined with a stated cause of action for negligence, which cannot be maintained without such rescission and cancellation, an appeal may be had on questions of law and fact from an order or judgment of the court setting the release aside before trial has been had on the cause of action for negligence and judgment has been entered thereon.

In recent months this court had occasion to review the case of Sloan v. Standard Oil Co., Marion County Court of Appeals Case No. 1134, involving the same type of petition but wherein no appeal was taken until after judgment was entered in favor of the plaintiff on the second cause of action. The appeal was then taken on questions of law and fact. Upon appellee's motion to dismiss the appeal as to the first cause of action as not having been timely perfected, this court ruled, without opinion, that the appeal should not be dismissed, and, in legal effect, that the court's determination of the first cause of action was to be considered in an appeal by the defendant from the final judgment in favor of plaintiff on the negligence phase of the action. Thereafter, on motion filed by the appellee to dismiss the appeal on questions of law and fact, this court found that the primary and paramount relief sought by plaintiff was a money judgment and that the cause was not one of those prescribed by Section 2501.02, Revised Code, as being appealable on questions of law and fact, and ordered the appeal dismissed on questions of law and fact and retained on questions of law only; in legal effect, requiring that both causes of action be heard on appeal in this court without a trial de novo. Subsequently, following hearing of the appeal of the entire action on its merits, this court affirmed the judgment of the trial court, and the defendant thereupon took its appeal to the Supreme Court.

Although we have been informed by counsel in this case that the propriety of this court's preliminary rulings, as above set forth, was raised in the Supreme Court, that court did not specifically pass thereon in its decision affirming the judgment of this court. (Sloan v. Standard Oil Co., 177 Ohio St. 149, 203 N.E.2d 237). Suggestion has been made that since the ruling on the motion to dismiss the appeal as to the first cause of action was made in favor of the appellant in this court, who was also the appellant in the Supreme Court, the appellant could not complain of such ruling. Nevertheless, if such ruling were improper, this court then had no jurisdiction to consider the appeal as to the first cause of action on its merits, nor did the Supreme Court. The Supreme Court's decision and the opinion written by Judge Herbert deal entirely with the merits of the first cause of action, and it is implicit in such decision that appeal as to such cause of action is properly deferrable until liability on the second cause of action has been determined.

The Sloan case still leaves open the question of whether appeal may be perfected by the defendant, and disposed of, as to the cancellation and rescission of a release of liability before trial has been had as to the alleged liability of the defendant so released. It is obvious, of course, that if trial proceeds as to the second cause of action and the defendant prevails, any issue on the first cause of action becomes moot as to the defendant and he will not appeal. It is equally obvious, in such case, that if the plaintiff appeals a judgment against him on the second cause of action the defendant may then assign error as to the decision against him on the first cause of action in order to prevent reversal of the judgment of the trial court in his favor. Section 2505.22, Revised Code.

The first cause of action is equitable in nature and, alleging fraud and mistake, but not alleging fraud in the factum, is triable to the court without a jury. The second cause of action is legal in nature, and the parties are entitled to a jury trial thereof. The joinder of these causes of action has been recognized in the jurisprudence of Ohio for many years, and the procedure of trying the first cause of action separately and to the trial judge for his determination before the submission of the second cause to jury trial is likewise recognized. See, for example, Shallenberger v. Motorists Mutual Ins. Co., 167 Ohio St. 494, 150 N.E.2d 295; McCuskey v. Budnick, 165 Ohio St. 533, 138 N.E.2d 386; Dice v. Akron, Canton & Youngstown Rd. Co., 155 Ohio St. 185, 98 N.E.2d 301; Picklesimer v. Baltimore & Ohio Rd. Co., 151 Ohio St. 1, 84 N.E.2d 214; Flynn v. Sharon Steel Corp., 142 Ohio St. 145, 50 N.E.2d 319; and Perry v. M. O'Neill & Co., 78 Ohio St. 200, 85 N.E. 41.

Former constitutional and statutory provisions, and court decisions interpreting such provisions, might be considered as tending to support the plaintiff's claim that a separate appeal could be initiated on questions of law and fact on the equitable cause of action before the legal cause of action goes to trial, or, in the alternative, to permit the entire case to be appealed on questions of law and fact 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 142 Ohio St. 277, 51 N.E.2d 717; Borton v. Earhart, 144 Ohio St. 334, 59 N.E.2d 37; Meyer v. Meyer, 153 Ohio St. 408, 91 N.E.2d 892; Gantz v. Village of Louisville, 155 Ohio St. 425, 99 N.E.2d 308; Connelly v. Balkwill, 160 Ohio St. 430, 116 N.E.2d 701 and Westerhaus Co., Inc., v. City of Cincinnati, 165 Ohio St. 327, 135 N.E.2d 318 (proceeding commenced before amendment of Section 2501.02, Revised Code [126 Ohio Laws 56], effective October 4, 1955; see note at bottom of page 333 of Judge 'Taft's opinion, page 232 of 135 N.E.2d). See, also, the procedure following in Bingham v. Nypano Rd. Co., 112 Ohio St. 115, 147 N.E. 1.

However, since the amendment of Section 6 of Article IV of the Constitution, effective in 1945, followed by the amendment of Section 2501.02, Revised Code (126 Ohio Laws 56), effective October 4, 1955, and insofar as appellate jurisdiction is now concerned, the distinction between chancery cases and law cases no longer obtains. As stated in Judge Herbert's opinion in Hawkins v. Hawkins (1964), 176 Ohio St. 469, at 471, 200 N.E.2d 300, at 302:

'It is apparent now that the determination of the question whether an appeal is one on questions of law and fact or on questions of law only is entirely controlled by statute. Section 2501.02 of the Revised Code. Decisions prior to this legislative enactment are no longer controlling in this area.'

See, also, the concurring opinion of Chief Justice Taft at page 474, 200 N.E.2d at page 303.

In pertinent part, Section 2501.02, Revised Code, now provides:

'Upon an appeal on questions of law and fact the court of appeals, in cases arising in courts of record inferior to the court of appeals within the district, shall weigh the evidence and render such judgment or decree as the trial court could and should have rendered upon the original trial of the case, in the following classes of actions, seeking as a primary and paramount relief:

'* * * [Here appear ten designated classes of actions.]

'In all cases not falling within the classes designated above the court of appeals shall have jurisdiction to proceed as in an appeal on questions of law only.' (Emphasis added.)

It will be observed that the Legislature has used the terms, 'cases' and 'actions,' and has not made reference to 'causes of action,' a distinction with a difference. 1 C.J.S. Actions § 1j(1)(a), p. 961. It will further be observed that the Legislature contemplates that such cases and actions may seek mixed relief, i, e., 'primary and paramount relief' together with secondary and subordinate relief. It appears obvious that the Legislature contemplated and intended that there should normally be only one appeal of a 'case' to the Court of Appeals, that that appeal should be of the 'case' in its...