dissenting.
In effect, the majority judges of this court hold that no case can be considered a “chancery case” where it is based upon a right secured by statute, unless that right or its equivalent was in existence in the time of courts of chancery.
. While they admit the equitable character of this action, because the right to a mechanic's lien and its enforcement is given by statute and can not be traced back to the hoary annals of a court of chancery, they hold that the action below, which was an action to declare a lien, marshal priorities of- liens and sell real estate for their payment, is not subject to trial on appeal under the appellate jurisdiction given to court of appeals by Section 6, Article IV, of the Constitution as amended September, 1912.
*104With this finding I am unable to agree.
There is no question that the right to a mechanic’s lien is a creature of statute. It is based upon the equitable doctrine that he who helps create a building upon real estate by furnishing either labor or material should be entitled to a lien upon it for payment, and the statute has therefore so provided. The character of the proceedings for the enforcement of such a lien is dependent upon the terms of the statute providing the remedy. Jones on Liens, Section 1559.
In Ohio, the lien is similar to that of a mortgage, which is also a creature of statute, and it is enforced in a similar manner by foreclosure and sale-. This proceeding is essentially equitable in its nature, although it, too, is provided by statute, as are all other actions (except prohibition) since the code of civil procedure.
Mechanic’s liens are specially favored by the Constitution as amended. Section 33, Article II, provides:
‘ ‘ Laws may be passed to secure to mechanics, artisans, laborers, sub-contractors and material-men, their just dues by direct lien upon the property, upon which they have bestowed labor or for which they have furnished material. No other provision of the Constitution shall impair or limit this power.”
To limit the right of a mechanic or material-man, secured under this 'provision, to a trial before a single judge without a jury and without an opportunity for a review of the facts by appeal, would certainly not in this important matter be a compliance with the desire of the people in amending the Constitution.
The proceeding for the enforcement of a mechanic’s lien is provided by 8323, General Code, as found in 103 O. L., 377 (Section 14).
“Any person holding a mechanic’s lien, in addition to the remedies herein provided for, may proceed by petition, as in other cases of liens, against the owner and all other persons interested, either as lien-holders or otherwise, in any * * * house * * * and the land on which it stands * * * and obtain such judgment therein' for the rent or sale thereof a* justice and equity require.”
*105It differs materially from the lien law under consideration in the ease of Dunn & Witt v. Kanmacher, 26 O. S., 497, where, as stated in the syllabus, the remedy was by “an action of money had and received” as prescribed by Section 5 of the mechanics’ lien act (S. & C., 834), and the holding that there was no right of appeal in that case has no weight here, because it was for trial by a jury and involved no equitable questions.
The proceeding given by Section 8323 is equitable in its nature, and if we now had separate courts of law and courts of chancery it would be brought before a court of chancery. Or if the action were in the federal court with its separate jurisdictions, it would be docketed and heard as an action in equity and not as a case at law.
In Gilchrist v. Railway Co., 58 Fed., 708, at page 710 the court uses the following language in commenting upon the jurisdiction of courts of equity in the enforcement of statutory laws:
“It is claimed by the plaintiff in the cross-bill that the lien of the judgment creditors in the ease at bar is a legal lien given by law, and hence can not be enforced in a court of chancery, and hence this court can have no jurisdiction of the matters set forth in the original bill. No doubt this point can be presented at any time in this court. It is true that the lien given in this case is a statutory lien. But that is no reason why it may not be enforced in equity. Pomeroy in his Equity Jurisprudence (Volume 1, Section 167) classes statutory liens as coming exclusively within the jurisdiction of a court of equity, and adds:
“ ‘In addition to the liens above mentioned which belong to the general equitable jurisdiction, the legislation of many states has created or allowed other liens which often come within the equity jurisdiction in respect at least to their means of enforcement. The so-called “mechanics’ liens” may be taken as the type and illustration of this class.’ ”
The able opinion of Chief Justice Nichols in the ease of Wagner v. Armstrong supports my view. While it concedes the difficulty and undesirability of giving an exact statement or definition of a chancery ease, it states that “the terms ‘equity’ and ‘ehancery’ are interchangeable terms and are constantly used jem synonyms in all our states as well las in England.”
*106That the term "chancery cases” is not limited to old rights known only to the antiquities of the law, but is applicable to new rights and remedies such as those seeking enforcement in this proceeding, authorized and provided by statutes and constitutional provisions just enacted, it is only necessary to quote the following words of the Chief Justice in Wagner v. Armstrong:
"It would not do, however, to lay down a hard and fast rule, that only such chancery cases as were known to that period of our legal history could have been intended by our Constitution makers as being the cases subject to appeal. The changing condition of the times, development along new lines, the springing up of new problems, progress in many of the avenues of life — ■ these things beget new rights and obligations that call for new and equitable remedies.
"Equity is not only elastic as to its remedies, but it is progressive.
"Its principles are indeed immutable, founded as they are on exact justice and equality before the law, but equitable remedies are constantly subject to enlargement.
"These considerations make it manifest, therefore, that an all-embracing and satisfactory definition of a chancery case would be most difficult to obtain, and if obtainable might well promote injustice rather than justice. ’ ’