Dissenting.
By Article 4, Section 6 of the Constitution of Ohio, the Court of Appeals is given appellate jurisdiction in, “the trial of chancery .cases.” The plaintiff in his petition in this case seeks an accounting and to impress securities with a trust. This is, therefore, a chancery case.
Section 12223-1 (3) GC provides:
“The appeal on questions of law and fact shall be construed to mean a rehearing and retfjai of a cause upon the law and the facts.”
Section 12223-21 GC provides:
“Appeal taken on questions of law and fact shall entitle the party to a hearing and determination of the facts de novo and shall be upon the same or amended pleadings.”
*341It is my opinion that under the Ohio Constitution and the above Sections of the General Code, an appeal on questions of law and .fact is well taken in a chancery case and that an appellant on questions of law and fact is entitled to “a hearing and determination of the facts.”
The General Code, by the use of the words “rehearing and retrial of a cause upon the law and facts” in §12223-1 (3) GC, and “de novo”’ in §12223-21 (2) GC, does not limit, in my opinion, the right of an appellant to a hearing of his case in the Court of Appeals in chancery cases to cases where there has been a trial of facts in the lower court. The above provisions are intended to make clear that an appellant when there has been a trial in the lower court in a chancery case, is not required to try his case on the record below, but is entitled to a hearing “de novo.”
The argument developed in the majority opinion that only by holding that this appeal is properly in law, can the parties be assured in all cases of one trial and one review, is a cogent one. I freely admit that I am not at all certain of the correctness of the conclusion reached by me in this case; it is one of the cases concerning practice where it is important that the question involved be settled by the Supreme Court, so that courts and lawyers may be guided thereby. As this court has certified its decision in this case to the Supreme Court as a conflict case, we shall not have long to wait.