DeRan v. Colonial Savings Co.

Ohio Court of Appeals

DeRan v. Colonial Savings Co.

152 N.E. 303, 20 Ohio App. 370, 3 Ohio Law. Abs. 338, 1925 Ohio App. LEXIS 222

CourtOhio Court of Appeals

DecidedMay 1, 1925

Docket156

StatusPublished

This text of 152 N.E. 303 (DeRan v. Colonial Savings Co.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DeRan v. Colonial Savings Co., 152 N.E. 303, 20 Ohio App. 370, 3 Ohio Law. Abs. 338, 1925 Ohio App. LEXIS 222 (Ohio Ct. App. 1925).

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Opinion

WILLIAMS, J.

Hal C. DeRan brought an action in the San-dusky Common Pleas against the Colonial Savings Bank & Trust Co. Issues were joined upon four causes of action and trial was had on the first three and a verdict thereon was returned in favor of DeRan for $5164.08. Court overruled a motion of Bank for a new trial and rendered judgment in favor of DeRan, and as a part of the same order and judgment, the fourth cause of action was dismissed without prejudice to the rights of DeRan, and the Court refused to hear evidence in support thereof although a tender of proof was made by DeRan.

Thereupon DeRan filed his appeal bond and perfected his appeal. A motion was filed by the Bank to dismiss the appeal. DeRan filed an amended petition setting out his fourth cause of action. The court of appeals held:

1. The right to appeal must be determined without regard to the pleading filed in this court for, if DeRan did not have a right of appeal before it was filed he did not better his position by its filing.

2. The right of appeal is determined by the nature of the action and not by the form of judgment rendered. Hull v. Bell Bros., 54 OS. 228.

3. DeRan was not deprived of his right of appeal because of the fact that fourth cause of action was insufficient at law, if it was insufficient. Rush v. Rush, 29 OS. 440.

4. The petition set forth that it was an action for an accounting, for an injunction against selling or disposing of collateral referred to, for cancellation of a note claimed to have been paid which was secured by collateral and incidentally for surrender of collateral. The nature of the case as determined by the pleading was equitable; clearly one in chancery and since only chancery cases are appealable the motion of the Bank to dismiss DeRan’s appeal is dismissed.

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WILLIAMS, J.

Hal C. DeRan brought an action in the San-dusky Common Pleas against the Colonial Savings Bank & Trust Co. Issues were joined upon four causes of action and trial was had on the first three and a verdict thereon was returned in favor of DeRan for $5164.08. Court overruled a motion of Bank for a new trial and rendered judgment in favor of DeRan, and as a part of the same order and judgment, the fourth cause of action was dismissed without prejudice to the rights of DeRan, and the Court refused to hear evidence in support thereof although a tender of proof was made by DeRan.

Thereupon DeRan filed his appeal bond and perfected his appeal. A motion was filed by the Bank to dismiss the appeal. DeRan filed an amended petition setting out his fourth cause of action. The court of appeals held:

1. The right to appeal must be determined without regard to the pleading filed in this court for, if DeRan did not have a right of appeal before it was filed he did not better his position by its filing.

2. The right of appeal is determined by the nature of the action and not by the form of judgment rendered. Hull v. Bell Bros., 54 OS. 228.

3. DeRan was not deprived of his right of appeal because of the fact that fourth cause of action was insufficient at law, if it was insufficient. Rush v. Rush, 29 OS. 440.

4. The petition set forth that it was an action for an accounting, for an injunction against selling or disposing of collateral referred to, for cancellation of a note claimed to have been paid which was secured by collateral and incidentally for surrender of collateral. The nature of the case as determined by the pleading was equitable; clearly one in chancery and since only chancery cases are appealable the motion of the Bank to dismiss DeRan’s appeal is dismissed.

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Bluebook (online)

152 N.E. 303, 20 Ohio App. 370, 3 Ohio Law. Abs. 338, 1925 Ohio App. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deran-v-colonial-savings-co-ohioctapp-1925.

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