Upon petition for rehearing plaintiff in error insists that the Curnutt estate at all times was seeking a money judgment against it, thus requiring a jury tral.
It points to the fact that the petition in intervention alleges that "the sum of $10,000.00 is due"; that in the opening statement counsel stated, "We are asking judgment in that amount," and that the judgment itself provides:
"It is therefore ordered, adjudged and decreed that the city of Barnsdall is indebted to H.M. Curnutt in the sum of $10,000 for services rendered under his contract prior to his death and the clerk of the district court is hereby authorized and directed to pay to the said Mabel Curnutt, administratrix of the estate of H.M. Curnutt, the sum of $10,000 being held by him, the cost of this proceeding to be paid by the plaintiff, City of Barnsdall.
"It is further ordered, adjudged and decreed that the plaintiff, city of Barnsdall, pay to the said Mabel Curnutt, administratrix of the estate of H.M. Curnutt interest at the rate of 6% per annum from this date, in the event such payment is delayed as a result of appeal by the city of Barnsdall until such time as the order of this court is complied with, and the Clerk of this court is further directed to delay the execution of this order until the plaintiff's motion for a new trial is disposed of. . ."
Notwithstanding the above-quoted statements in the petition and the opening statement of counsel, the matter throughout the trial and upon this appeal was presented by the estate purely as a matter of an allowance of an attorney's fee out of funds in the hands of the court and upon which there existed a lien. The order and judgment of the court directs the payment of the $10,000 by the clerk. This was a special proceeding as distinguished from a civil action by statute 12 Ohio St. 1941 §§ 3[12-3], 4, and 5. Therefore, the statutory provisions for jury trial in civil actions is not applicable.
We think, however, there is merit in the city's criticism of the judgment wherein it provides for the payment of interest in excess of the amount in custody. The $10,000 to be paid by the clerk exhausts the fund in custody, and the judgment directing payment of interest, if treated as effective, could be enforced only as provided for the enforcement of money judgments. The *Page 8 judgment in that respect is foreign to the issues and matters presented to the court by the claim of the estate.
The judgment is therefore reformed by deletion of all parts thereof purporting to require payment by the city of interest. In all other respects the judgment is affirmed.