
    Bever v. Beardmore.
    W. B. took judgment in the court of common pleas for more than was due against J. B., the principal and others, liis sureties, on warrant of attorney. The defendants were not summoned or otherwise legally-notified of the time and place of taking the judgment. In a proceeding at a subsequent term of the court, to vacate the judgment on account of its excessive amount, by petition under section 536 of the code (S. & C. 1115), brought by J. B. alone against W. B. alone, within the statutory limit of one year after he had notice of the judgment ; and in which proceedings the sureties were made parties, but not until more than a year had elapsed after each of the judgment defendants had notice of the judgment, Held: It is error to dismiss the proceedings, on motion of the judgment creditor, for an alleged want of jurisdiction in the court.
    Error to the District Court of Monroe County.
    
      J. P. Spriggs and John. W. Doherty for plaintiff in error.
    A proceeding to vacate a judgment is not a civil action. Taylor v. Fitch, 12 Ohio St., 169. As to what is an adverse party, see Fitzgerald v. Cross, 30 Ohio St., 204.
    It is claimed, however, on the authority of the cases of Smetters and Harris v. Rainey et al., 13 Ohio St., 568, and 14 Id., 287, that Mann, Booth and Foreaker were necessary parties, but we think a careful examination will show that the cases referred to are not analogous to the present one, and that they are not necessary parties in this case.
    The court in those cases state three reasons why all the judgment debtors should be parties to the proceeding to reverse the judgment: 1. “To prevent a multiplicity of
    suits.” 2. “ To protect the interest of those jointly bound in the judgment;” and 3. “To secure the judgment credit- or against unreasonable delay and expense in enforcing his judgment.”
    Not one of these reasons exist in the present ease, for
    1. The statute of limitation had already expired as to Mann, Booth and Foreaker, hence there was no danger of their commencing a separate action.
    2. The co-juidgment debtors could not be placed in a worse condition by vacating or modifying the judgment as sought, for it was already paid off and cancelled as to them; and
    3. The judgment creditor could not be unreasonably delayed in enforcing his judgment, for it was already paid off and discharged.
    The reason for the rule as expressed in those cases having no application to this case, we think is a sufficient reason why the rule itself should not be applied.
    But the court found there was a defect of parties, and on leave of court, the petition was amended, and Mann, Booth and Foreaker were made parties — see section 40 of the code —and as their consent to be made parties had not been obtained, they were made defendants — see section 36 of the code.
    “ The petition may be amended and new parties made.” Knox County Bank v. Doty et al., 9 Ohio St., 505; Biddle, Rutland Kendy v. Canhy et al., 4 W. L., 124, and cases there cited; Smetters and Harris v. Rainey et al., 13 Ohio St., 568, and 14 Ohio St., 287; Bradford v. Andrews et al., 20 Ohio St., 208.
    If the action was not barred when Bever filed the original petition against the defendant Beardmore, and obtained service on him, the action was not barred when service was obtained on Mann, Booth and Foreaker, on the amended petition, for if the right of action was saved to one it was saved to all. See Wilkins et al., v. John Philips, 3 Ohio 40, in which the court say, “ Where one party to a writ of error is within the saving clause of the statute of limitation, the case is saved as to all the parties.”
    This case is settled in law, and is cited and approved in Moore v. Armstrong, 10 Ohio, 17; Messe v. Keef ?, Id., 364; Massie’s Heirs v. Matthews’ Hx., 12 Ohio, 353; Sturges v. Longworth, 1 Ohio St., 562; Trimble v. Longworth, 83 Ohio St., 442 ; Wells v. Childs, 17 Ohio St. R., 319 : Bradford v. Andrews, 20 Ohio St. R., 208; Buckingham v. The Commercial Bank of Cincinnati, 21 Ohio St. R., 131; Riddle Parker v. Roll et al., 24 Ohio St. R., 572; and Miller et al., v. Longaere, 26 Ohio St. R., 291.
    
      It is claimed, however, that a departure from the rule laid down in the case of Willcins v. Philips, 3 Ohio. 49, hereinbefore referred to (and the numerous cases citing and approving the same) was made in the case of Smetters Harris v. Rainey et al., 13 Ohio St. R., 568, and 14 Ohio St. R., 287, and the case of Jones v. Marsh, 30 Ohio St., 20, and that these cases are decisive of the present case.
    There are, we think, some marked distinctions between the cases of Smetters Harris v. Rainey et al., and the present case.
    1. The judgment in that case was founded on a joint obligation, and in this case the obligation was several as well as joint.
    ■ 2.' In that case the plea of limitation was interposed by one of the judgment debtors, who had an interest in sustain-' ing the judgment, and who had been made a party after the limitation had expired. In the present case, the judgment debtors who were made parties after the limitation had expired, make no objection to the vacation of the judgment, and the judgment creditor undertakes to plead the limitation for them.
    3. In that case the proceeding was in error to reverse the judgment, and perhaps, ultimately release one or more of the judgment debtors from all liability on the judgment, and thereby change the liability of the endorser, Dildine. In the present case it is only sought to modify the judgment, by requiring the judgment creditor to refund the usurious interest included in the judgment, and paid by mistake.
    “ The plea of the statute of limitations is a defense not to be favored.” Sheets v. Baldwin's Ad'mrs, 12 Ohio, 120; Bradford v. Andrews, 20 Ohio St., 208, per Judge Welch, page 220.
    We think the cases of Smetters Harris v. Rainey et al., go to the very verge, and should not be extended further; for while they have been cited and approved in so far as who are necessary parties, in 16 Ohio St., 284, 288, and 21 Ohio St., 320, 629, and in Jones v. Marsh, 30 Ohio St., 20, as to the right to plead the statute of limitation they seem to be a departure from the case of Wilkins v. Philips, 4 Ohio, 46; and the cases hereinbefore referred to citing and approving the same, decided before the decision of this case; but since these decisions a different doctrine, as to the limitation, has been held in the case of Wells y. Childs, 17 Ohio St., 319; Bradford, v. Andrews, 20 Ohio St., 208; Buckingham v. The Commercial Bank of Cincinnati, 11 Ohio St., 131; Btiddle Parker v. Roll, et al., 24 Ohio St., 572, and Fitzgerald v. Cross, 30 Ohio St., 444.
    
      Wm. Okey ¿f- Son and David Okey for defendant in error.
    As to who are necessary parties.
    The judgment in this case was joint; (Hempy v. Ransom, 33 Ohio St., 312, 316; Roby v. Rainsberger, 27 Ohio St., 674,) and the rule is well settled that all the defendants to a joint judgment are necessary parties to a petition filed by one of their number to reverse or modify it. Smetters
    
    
      Harris v. Rainey, 13 Ohio St., 563; same, 14 Ohio St., 287; Jones y. Marsh, 30 Ohio St., 20 ; Buckingham v. Bank, 21 Ohio St., 131; Robinson v. Orr, 16 Ohio St., 284-288; Wood Co. y. Junkins, 19 Ohio St., 348; Hammond y. Hammond, 21 Ohio St.,'620; Tod v. Stambaugh, 37 Ohio St., 469.
    As to the question of limitation:
    The time limited for filing a petition to vacate a judgment (old code, § 541) is rather a condition qualifying the right of action, than a mere limitation on the remedy. Railway v. Hiñe, Adm'r, 25 Ohio St., 629 ; Schooner Mar■inda v. Dowlin, 4 Ohio St., 500.
    There is no saving to any one under the limitation of sub-division 9, section 534. The proceeding must be commenced within the time limited, and not after § 541.
    The question made in the record is probably more strictly a question of jurisdiction, than of limitation.
    The original petition filed by Bever against Beardmore alone, was defective, and was bad on general demurrer.
    The authorities in this class of cases, in effect sustain the proposition, that whenever a general demurrer would have been well taken, the court would have no jurisdiction over the subject matter of the action. Smetters $ Harris v. Rainey, 14 Ohio St., 287; Jones v< Marsh, 30 Ohio St., 20.
    The right to amend the petition, and make new parties, under proper circumstances, is conceded. But before such .amendment can be made, the court must have acquired jurisdiction of the subject matter. See two cases last above cited.
    Now, the power to bring in additional parties under section 5013, R. S., (old code, § 40) does not apply where the plaintiff's right to maintain the action depends on the presence of such additional party. Nor, it seems, does § 5114 apply, though the statute of limitations has run in the meantime. Pomeroy Rem. and Rem. Rights, § 420, discussing the provisions of section 122, of the N. Y, code, which are the same as § 5013, R. S.^
    But aside from the question of the right to add new parties by amendment, we insist that the amendment to the petition making Mann, Foreaker and Booth parties, after the expiration of the time limited in which either of the defendants in the judgment could have filed an original petition, does not cure the defect in the original petition, and confer jurisdiction to vacate the judgment. Smetters Harris v. Rainey, 14 Ohio St., 287; Jones v. Marsh, 30 Ohio St., 20; Robinson v. Orr, 16 Ohio St., 285.
    But it is said by counsel for plaintiff in error, that the authority of Smetters ¡f- Harris v. Rainey, Supra, was disapproved in the case of Bradford v. Andrews, 20 Ohio St., 208. The disapproval, however., is a mere dictum. The case was a will contest, in which the statute made special saving to certain persons. The cases are not identical, and so stated by Judge Welsh, p. 220.
    And the same learned judge, who delivered the opinion in the case of Buckingham v. Bank, 21 Ohio St., 131, — a case somewhat analogous to the case of Smetters $ Harris v. Rainey, — makes no reference whatever to either of the above cases.
    It will be observed that the case of Smetters Harris v. Rainey, 14 Ohio St., has frequently been cited as authority since the decision of Bradford v. Andrews.
    
    
      See Hammond v. Hammond, 21 Ohio St., 627; Jones v. Marsh, 30 Ohio St., 20 ; Hempy v. Ransom, 33 Ohio St., 319; King v. Bell, 36 Ohio St., 468; MeKinstry v. Threw, decided on motion, on authority of Smetters Harris v. Rainey, 14 Ohio St., December term, 1877, and not reported.
    It will also be observed that the learned judge, who delivered the opinion in the case of Smetters Harris v. Rainey, also delivered the lengthy and able opinion of the court in the case of Trimble v. Longworth 13 Ohio St., 431, in which he brings in review the following cases cited by counsel, as authority for plaintiff in error:
    
      Wilkins v. Philips, 3 Ohio; Meese v. Keefer, 10 Ohio; Massie's Heirs v. Mathews, 12 Ohio; Kay v. Watson, 17 Ohio; Sturgess v. Longworth, 1 Ohio St., Moore v. Armstrong, 10 Ohio.
    In these cases, the rule that “ if the right of action is saved to one it is saved to all,” was followed and approved. The counsel for plaintiff in error attempts to apply this rule to the case at bar, but it is evident that the learned judge, who delivered the opinion in Smetters Harris v. Rainey, and who had recently so ably reviewed the authorities, did not regard the rule as applicable in that case, for not one of the cases is cited in the opinion.
   Martin, J.

Plaintiff in error, Bever, was plaintiff below. In the common pleas his petition was dismissed, and on error the district court affirmed the judgment. To reverse this judgment of affirmance this case is here. The object of the proceeding in the common pleas, was to vacate a judgment rendered at a former term of the same court of common pleas, as provided in section 536 of the code (S. & C., 1115). The judgment was taken on warrant of attorney in favor of the defendant in error, Beardmore, against plaintiff herein and Abram Mann, William Foreaker and John Booth, his sureties, and without legal notice to them of the time and place. It was rendered jointly against them all on joint and several promissory notes, and was subsequently paid by tbe sureties who had notice of the judgment about the time it was taken. The ground assigned was, under the 9th sub-division of section 134, that it was taken for more than was due. The petition was filed more than a year after the rendition of the judgment, and alleged that the plaintiff first had notice of the judgment within the year next before the filing. The sureties were not made parties to the original petition. They were subsequently brought in as defendants, and the case was heard on a second amended petition, embodying in substance the foregoing facts, and an answer and reply. The sole issue was whether the proceeding was barred under section 541 of the code, which provides that it must be commenced within one year after the defendant has notice of the judgment. On the hearing the common pleas made special findings and judgment as follows :

“ This cause came on for hearing, and was submitted to the Court on the pleadings and evidence. And the court being fulty advised in the premises, on the request of the plaintiff that its conclusions of fact be stated separately from its conclusions of law, with a view to excepting to the decision of the court upon the questions of law involved in the trial, finds as its conclusions of fact, that there was included in the notes upon which judgment was taken by confession, a large amount of usurious interest, and that the plaintiff John Bever was the principal in said notes, and the defendants,. John Booth, Abram Mann and William Foreaker were his sureties only, which was known to the said William Beardmore, at the time he received and accepted said notes and powers of attorney. And that said defendants had a valid defense to said notes upon which said judgment was taken by confession, to the amount of the usurious interest included therein, amounting to several hundred dollars ; and the court further finds that the defendants, Mann, Foreaker and Booth had notice of the rendition .of the judgment upon confession, at or about the day of its rendition. That at the date of the execution of the note and warrant last mentioned in the petition upon which said judgment was taken, to wit: January 24, 1874, it was agreed between the said John Bever, William Beardmore, Abram Mann, William Foreaker and John Booth, that judgment should be taken at the then next term of this court to commence February 3, 1874, upon all the notes and warrants of attorney, which were included in said petition and judgment. That said term closed on the 16th day of February, 1874; that no summons or other further notice was served upon or given to said Beaver of the rendition of said judgment, and that he had no notice that said judgment had been rendered, or the amount thereof, until the 18th day of March, 1874. That proceedings were commenced by said Bever against said Beardmore only, on the 20th day of February, A. D., 1875, and that said Mann, Foreaker and Booth were not made parties to the proceeding until the 13th day of June, 1876. And as to its conclusions of law upon the above found facts the court finds that the proceedings herein were not commenced within the period required by law, and dismiss the same with costs. It is therefore considered by the court that said cause be, and the same is hereby dismissed at the costs of the said plaintiff, which costs are here adjudged against said plaintiff.”

The question to be decided is, Was the proceeding brought within the time limited in section 541, that is, “ within one year after the defendant has notice of the judgment.” We think there can be no doubt, that, if the plaintiff had made the sureties parties to his original peti-. tion, or brought them in by amendment within the year after notice to him, the proceeding would have been duly commenced as to all. The petition was filed within the year after the plaintiff had such notice, but more than a year after each of the sureties had the notice. To that petition the sureties were not parties. And when they were brought in more than a year had elapsed after notice to all the judgment defendants, including Bever. All the defendants in a joint judgment are necessary parties to a petition in error to vacate it. Smetters’ case, 14 Ohio St., 287. This is the well settled rule of courts restricted to the exercise of appellate jurisdiction ; and when an omitted party is brought in after the statute has run in his favor, he may plead the bar, and it is held such plea will oust the jurisdiction of the court. The proceeding under review here is of the court of common pleas, in or connected with an action on promissory notes, within its general original jurisdiction. It is not of itself a civil action ; but a special proceeding in an action to effect a judgment rendered therein at a former term of the same court. Taylor case, 12 Ohio St. 169. It. is professedly an application for a new trial. In a civil action delay in bringing in a defendant whose presence is indispensable to a recovery may well control the question as to the true time of the commencement of the action. If such effect can properly be given to an application like this for a new trial, it can be only in a case where the omitted defendant has an undoubted interest, in maintaining the judgment, and not simply that he is a necessary party because he is a defendant in the judgment and bound by it. In our opinion the sureties were necessarj1- parties to the petition. They would be so, even if the petition by statement showed that the vacation of the judgment would do them no harm. Their real interest might nevertheless require a denial of the allegations of the petition or an averment of new matter. In the case at bar the sureties set up no defense whatever ;CMid the allegations of the petition and the findings of fact by the court, are admitted by all the parties. The judgment had been paid in full by the sureties. This operated an assignment to them of the judgment with its incidents of process and lien to compel reimbursement from their principal. But it does not appear in the record that this right was valuable or desired by them. If the judgment had been vacatéd, a claim to the amount of the usurious excess included in their involuntary payment, would thereupon have enured to them against the judgment creditor; with the risk however of another trial. It does not appear inferentially or otherwise, that they were interested in resisting the vacation.

The judgment creditor may not complain of the delay because the judgment was fully paid to him before the time began to run against Bever. In the Fitzgerald case, 30 Ohio St., 444, it is held that in a proceeding under section 75 of the code, to open up a judgment rendered without further service than by publication in a newspaper, the notice to be given to the adverse party must be given to such party as is interested in maintaining the judgment.

In that case the holding related to a party shown on the face of the judgment to be merely formal. In that respect it differs from this case. But the principle of that case has weight here, because the sureties as parties are concluded by this record, made since the rendition of the judgment, and in which record no adverse interest in their behalf is shown. Be this as it may, we are not prepared to say that the analogy between a petition in error in an appellate court and this proceeding in the common pleas, is so perfect as to require us to hold the delay under consideration, a circumstance affecting the jurisdiction of the court. We think the district court erred in affirming the judgment of the common pleas.

Objection is made in argument that the sureties are not styled as parties in the petition to this court. Their appearance is duly entered and service of process waived as appears in the printed record. This is sufficient.

Judgment reversed and cause remanded.  