This action was based on the cancellation of a deed, accounting for rents and profits, quieting title and partition. The case was tried in the Mahoning Common Pleas and was decided in favor of Andy Filio, the defendant. The Court of Appeals, it is claimed, found that the “plaintiff” Anna • Kanna, (now Anna Zlatoper) had abandoned her claim in the petition, and had proceeded with the trial upon allegations made in the petition that “defendant” promised to pay her money for signing the deed. Judgment in the Court of Appeals was rendered against Filio for $1250.

On motion to certify, Filio questions the right of the Court of Appeals to change a cause of action from one in equity to one at law presenting a jury issue; and the right of said court to render a judgment entirely contrary to the relief asked below, when no evidence, stipulations, admissions or pleas to support the findings of abandonment and trial exists in the record.

It is further claimed that Court of Appeals was without jurisdiction to enter judgment; that the decision is contrary to law and against the weight of the evidence, and that the Court erred in reversing the judgment of the Common Pleas.