Opinion Per Curiam.

WEINLAND V. FULTON, SECRETARY OF State.

Constitutional law-Validity of amendment-Cannot be determined in injunction proceeding-To restrain submission to electors, when.

(No. 16071-Decided September 10, 1918.)

ERROR to the Court of Appeals of Franklin county.

Mr. Frank Davis, Jr., for plaintiff in error.

Mr. Joseph McGhee, attorney general; Mr. P. E. Dempsey; Mr. Timothy S. Hogan; Mr. Judson Harmon and Mr. A. J. Freiberg, for defendant in

error.

BY THE COURT. In an action to enjoin the Secretary of State from submitting for the approval or rejection of the electors a constitutional amendment proposed by petition in pursuance of the provisions of Section 1 and Section la of Article II of the Constitution of Ohio, a court can not consider or determine whether such proposed amendment is in conflict with the Constitution of the United States. (Pfeifer et al. v. Graves, Secretary of State, 88 Ohio St., 473, approved and followed.)

Judgment affirmed.

NICHOLS, C. J., WANAMAKER, Newman, JONES, MATTHIAS, JOHNSON and DONAHUE, JJ., concur.

Statement of the Case.

THE COMPLETE BUILDING SHOW Co. v.
ALBERTSON.

Courts of appeals-Appellate jurisdiction-Chancery casesPleading-Action at law-Accounting-Form of action not changed, when.

1. The jurisdiction of the court of appeals is now conferred only by Section 6, Article IV of the State Constitution. In the trial of cases on appeal its jurisdiction is thereby limited to chancery cases and can neither be enlarged nor curtailed by the general assembly.

2. An action for the recovery of money as a debt or as damages is essentially an action at law and, where no fiduciary or trust relation exists between the parties, cannot be converted into a suit in chancery for an accounting by averments that facts relative to plaintiff's claim and the extent of his damages are not known to plaintiff but are within the knowledge of the defendant.

(No. 15912-Decided November 26, 1918.)

ERROR to the Court of Appeals of Cuyahoga county.

The plaintiff in error in this court was the plaintiff in the court of common pleas. In its petition the plaintiff avers that in the transaction of its business, and incidental thereto, it exhibited a picture and offered to the person suggesting the best title therefor a certain house and lot. The house was not then completed, but was to be finished by the plaintiff in accordance with the plans and specifications on file. The defendant was the successful competitor, and a deed was duly executed conveying said premises to him. Defendant requested the plaintiff to turn over to him the balance of moneys not expended, and which were held by the

Statement of the Case.

plaintiff for the completion of the building according to the plans, specifications and survey therefor, stating that he would pay and discharge all unsatisfied claims for material and labor required for the completion of said house, and discharge and satisfy all costs of materials thereafter to be delivered to complete the same. The plaintiff accordingly turned over to the defendant for such purpose the sum of $955.90.

Plaintiff then avers that after receipt of said money "the defendant misapplied said money to other items and accounts than those contained in the plans, specifications and survey aforesaid and failed to apply said money to the items, accounts and purposes designated in the plans, specifications and survey and left unpaid and unsatisfied claims for labor and materials against the plaintiff for many hundreds of dollars as plaintiff is informed and believes, the exact amount of which is to the plaintiff unknown and which after the exercise of due diligence, it is unable to ascertain, but on information and belief alleges the amount to be, towit, $656.14."

There are other averments in the petition, repeated in various forms, but which in substance are that the defendant has refused and still refuses to account to the plaintiff for said money after demand made therefor, and that defendant is insolvent except in so far as his solvency is effected by said property. The prayer is that an account be taken between the plaintiff and defendant and a decree entered ordering the defendant to reimburse plaintiff in the amount of the balance ascertained

Statement of the Case.

to be due plaintiff, and in default thereof that the amount be entered as a judgment and made a lien upon the premises of the defendant, and said lien foreclosed, and that until further order of the court defendant be restrained from conveying or encumbering said property.

Issue was joined by answer; and by way of crosspetition the defendant set out that the plaintiff was indebted to certain persons and corporations therein named for materials claimed by them to have been furnished for and used in the construction of said house, who were claiming liens on said premises therefor, and that the same if valid were for materials furnished at the instance and request of plaintiff pursuant to its obligation to deliver said house to the defendant free of cost. Said material and supply companies were made defendants, and filed cross-petitions setting up their claims.

Plaintiff filed a reply to the cross-petition of the defendant Albertson, but none to the cross-petitions of the other defendants. The case was tried by the court, the entry showing that a jury had been waived, and the court found in favor of the defendant Albertson and also found in favor of the cross-petitioning material and supply companies and against the plaintiff, and ordered and adjudged that the plaintiff pay their claims. The case was thereupon taken on appeal to the court of appeals; where, upon motion, the same was dismissed upon the ground that the court of appeals did not have jurisdiction thereof. Error is prosecuted in this court to reverse that judgment.

Opinion, per MATTHIAS, J.

Mr. David B. Carpenter, for plaintiff in error. Messrs. Wilkin, Cross & Daoust and Mr. Trafton M. Dye, for defendant in error.

MATTHIAS, J. The jurisdiction of the court of appeals is now conferred only by Section 6, Article IV of the State Constitution. In the trial of cases on appeal its jurisdiction is thereby limited to chancery cases and can neither be enlarged nor curtailed by the general assembly. Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, and Wagner v. Armstrong, 93 Ohio St., 443.

The court of appeals refused to entertain jurisdiction of this case and dismissed the appeal. The only question therefore presented by the record is whether this case is a chancery case and appealable to the court of appeals.

In discussing the question by which the extent of equity jurisdiction is to be tested and practically determined, it is stated in 1 Pomeroy's Equity Jurisprudence (3 ed.), Section 62, that "The question is * * * whether the circumstances and relations presented by the particular case are fairly embraced within any of the settled principles and heads of jurisdiction which are generally acknowledged as constituting the department of equity." It is further said that one of the results which follows is that "a court of equity will not, unless perhaps in some very exceptional case, assume jurisdiction over a controversy the facts of which do not bring it within some general principle or acknowledged head of the equitable jurisprudence."