The question before the court at this time arises under a motion filed by the Inland Mortgage Corporation, defendant-appellee, to dismiss the appeal on questions of law and fact filed by Robert L. Murphy and Gladys L. Murphy, defendants-appellants.
On behalf of the Inland Mortgage Corporation, hereinafter called Inland, it is contended that "because this case is an action at law and such appeal is improper in such action," the appeal on questions of law and fact should be dismissed. Counsel for Inland cite the decisions of the Supreme Court of Ohio in the cases of Borton v. Earhart (1945), 144 Ohio St. 334, andNordin v. Coulton (1943), 142 Ohio St. 277; and three decisions by Courts of Appeals of Ohio between 1928 and 1936 in support of Inland's contention that the case now in court is not appealable on questions of law and fact.
In the case of Hebden v. Hebden (1957), 107 Ohio App. 184, it was held that the 1945 amendment of Section 6, Article IV of the Constitution of Ohio authorized the General Assembly to define the appellate jurisdiction of the Courts of Appeals and that this authority had been exercised by the General Assembly by the enactment of Section 2501.02 of the Revised Code effective October 4, 1955 (126 Ohio Laws, 56, later amended in 129 Ohio Laws, 742, effective January 10, 1961). The first paragraph of the syllabus in the Hebden case, supra, reads as follows:
"Section 2501.02, Revised Code, as amended, effective October 4, 1955, enacted pursuant to the 1945 amendment of Section 6, Article IV of the Constitution, authorizing the General Assembly to change the appellate jurisdiction of the Court of Appeals, prescribed the jurisdiction of the Courts of Appeals in appeals on questions of law and on questions of law and fact; and cases not falling within the ten classes specified therein as appealable on questions of law and fact are appealable on questions of law only."
Section 2501.02, supra, reads in part as follows:
"* * * In addition to the original jurisdiction conferred by Section 6 of Article IV, Ohio Constitution, the court shall have jurisdiction:
"* * *
"Upon an appeal on questions of law and fact the Court *Page 206 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:
"* * *
"(3) The foreclosure of mortgages and marshalling of liens, including statutory liens;
"* * *
"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."
The notice of appeal filed by Robert L. Murphy and Gladys L. Murphy on April 23, 1963, reads as follows:
"Robert L. Murphy and Gladys Murphy, defendant appellants herein, give notice of appeal on questions of law and fact to the Court of Appeals of Franklin County, Ohio, from the final order and summary judgment rendered herein on the 15th day of April, 1963."
The court's decree of April 15, 1963, makes reference to the execution and delivery by the Murphys to Inland of "their certain mortgage as in the cross-petition described, and on the premises therein described; * * *." The decree finds "that the conditions of said mortgage have been broken," and orders that unless the Murphys within thirty days thereafter pay the full amount of the judgment with interest "their equity of redemption of said property be foreclosed and said premises be sold, etc."
In as much as the order appealed from clearly orders the foreclosure of the mortgage executed by the Murphys in favor of Inland, the case comes within the provisions of paragraph 3 of Section 2501.02, supra, above set forth. For this reason, therefore, the motion should be overruled. *Page 207