Fleurot v. Fletcher

18 Ohio C.C. Dec. 841

Opinion

SWING, J.

The petition in this case alleged that plaintiff loaned defendants $15,000 for a term of three years, receiving as security a deed in fee ■simple to certain real estate, and giving a lease back to the defendants; that the said loan had not been repaid, and that the deed was in fact a mortgage; and praying for a foreclosure and sale of the said property.

The motion to dismiss the appeal in this case should be overruled. Plaintiff’s cause of action is purely equitable. No right to a jury existed. The right to have the deed declared a mortgage and the right to have the transaction declared a loan for $15,000 was wholly within the jurisdiction of a court of equity, and could not be tried to a jury. Whether or not a case is appealable depends upon the relief sought, and here it is equitable.

Jelke and Giffen, JJ., concur.