
    Taylor, Appellant, v. Siers.
    
      Practice, O. P. — Parties—Death of .party — Substitution of executor — Appearance by attorney.
    
    Where two persons are sued as partners and one of them dies, and the executor of the deceased is substituted as a party of record, and at tbe trial tbe attorney wbo bad entered an appearance for tbe two partners appeared for tbe surviving partner and tbe estate of tbe deceased partner, and a verdict is rendered in favor of tbe plaintiff, it is reversible error for tbe court to enter judgment n. o. v. for tbe executor of tbe deceased partner on tbe ground that be bad not been served with process.
    After an appearance in a trial on tbe merits tbe plaintiff ought not to be deprived of tbe result on tbe theory that tbe defendant was not regularly in court, without some evidence from the latter that the attorney assuming to represent him was not authorized so .to do.
    Argued March 7, 1916.
    Appeal, No. 33, March T., 1916, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1913, No. 394, for defendant n. o. v. in case of E. J. Taylor v. Wm. M. Siers and Bussell Uhl, doing business as Wm. M. Siers Cigar Company.
    Before Orlady, P. J., Henderson, Kephart, Trexler and Williams, JJ.
    Reversed.
    Assumpsit for goods sold and delivered. Before Woodward, J.
    From the record it appeared that pending suit, but before the trial of the case, one of the joint defendants, Russel Uhl, died, and plaintiff, upon learning of his death, suggested of record his death, and a substitution thereon, of John H. Uhl, executor, and Sarah H. Uhl, executrix, but no service of a sc-ire facias, or a rule to show cause was made upon them.
    On the trial of the cause, Bush Trescott, Esq., á member of the bar, appeared at the trial, and directed that his appearance should be entered of record as follows: “Bush Trescott, Esq., for Wm. M. Siers, individually, and Wm. M. Siers Cigar Company, and for the Estate of Russel Uhl, deceased.”
    In the course of the trial no objection was made by the attorney for the defendants to the manner in which the executors were substituted on the record.
    
      On June 5, 1915, the jury rendered a verdict in favor of the plaintiff.
    On June 9, 1915, defendants, through their counsel, filed reasons for a new trial and judgment non obstante veredicto, on the ground that plaintiff had not proven the existence of a partnership.
    On July 9,1915, the attorneys for the executors of the estate of Russell Uhl, deceased, filed additional reasons for judgment non obstante veredicto, wherein they averred that the executors of the estate of Russel Uhl, deceased, not having.been properly made parties to this suit, the verdict could not be sustained.
    The court entered judgment for the executors non obstante veredicto.
    
      Error assigned was in entering judgment for executors non obstante veredicto.
    
      Charles M. Bowman, with him Reynolds cG Reynolds, for appellant.
    Failure to deny, by affidavit, answer, or depositions, the right of counsel to appear for them, is equivalent to admission that he had proper authority: Danville, Etc., R. R. v. Rhoades, et al., 180 Pa. 157; McAlphine Street, 40 Pa. Superior Ct. 268.
    While a writ of scire facias, or rule to show cause may be the usual methods employed, plaintiff is not obliged to resort to such methods: Ash, et al., v. Guie, to use, etc., 97 Pa. 493; Dingman v. Amsink, 77 Pa. 114.
    
      Henry W. Dunning, with him Mulford Morris, for appellee.
    At common law, the death of a partner, joint defendant, pendente lite, terminated the liability of the deceased partner or his estate, and the surviving partner sued was alone liable: Walter v. Ginrich, 2 Watts 204; Given v. Albert, 5 Watts & Sergeant 333; Miller v. Reed, 27 Pa. 244.
    A liberal construction of the Act of March 22, 1861, P. L. 186, permits the plaintiff to bring in the executor or administrator and proceed against him and the survivor at the same time to judgment: Dingman v. Amsink, 77 Pa. 114; Brady v. Reed, 87 Pa. 111; Dowling v. McGregor, 91 Pa. 410; Ash v. Guie, 97 Pa. 493; Mochette v. Magee, 9 Philadelphia 24.
    In the case at bar, it is patent, that until the substitution of the Uhl Estate executors under the statute, all proceedings in the cause, on the part of the plaintiff, could only be directed toward and contemplate the surviving defendant, Wm. M. Siers; that the.attorney of record, Rush Trescott, Esq., had only authority to represent him in the matter.
    July 28, 1916:
   Opinion by

Hendekson, J.,

This action was brought against William M. Siers and Russell Uhl doing business as the Wm. M. Siers Cigar Company. The action was based on a contract alleged to have been entered into by the plaintiff with the defendants. The summons was regularly served on the defendants an appearance entered for them and an affidavit of defense filed. Uhl, one of the defendants, having died, the plaintiff suggested of record his death and the substitution of his executors. This was done November 25, 1914. The case was called to trial June 5, 1915, Rush Trescott, Esq., appearing for Wm. Siers individually and Wm. M. Siers Cigar Co. and for the estate of Russell Uhl, deceased. A verdict was returned for the plaintiff; thereupon the defendants filed a motion for a new trial and for judgment non obstante veredicto. The learned trial judge discharged the rule for judgment as to Siers but made it absolute as to the executors of Uhl and from this action the plaintiff appealed. The reason assigned for entering judgment for the Uhl estate was that the record did not show that the executors weie properly brought into court. This question was not raised during the trial and was suggested after the motion for judgment non obstante veredicto on the ground that the court had refused to instruct the jury that the evidence was not sufficient to show that Uhl was a member of the firm had been filed. It may well be doubted whether the defendants’ second point is a request for binding instructions within the meaning of the Act of April 22, 1905, P. L. 286, and therefore a sufficient support for a rule for judgment non obstante veredicto, but it is not necessary to decide that question, as we regard the reason moving the court to the action appealed from insufficient. It appears from the record that an appearance was regularly entered for all of the defendants after the action was brought and that after the substitution of the executors of Uhl the same attorney appeared for all of the defendants and conducted the trial on their behalf. The course adopted was similar to that taken in Gingman v. Amsink, 77 Pa. 114, in which the Act of March 22, 1861, relating to the substitution of the legal representatives of the deceased defendant was discussed and the judgment affirmed, and that case was cited with approval.in Dowling v. McGregor, 91 Pa. 413. It was held in Ash v. Guie, 97 Pa. 493, that “a liberal construction of the statute (Act of 1861) permits the plaintiff to bring in the executor or administrator and proceed against him and the survivor at the same time to judgment.” If, however, the substitution was not lawfully effected the appearance of Mr. Trescott for the defendants cured that irregularity or at least imposed on the appellees the necessity of showing that such appearance was without their authority. No objection was made at any stage of the trial to the manner in which the executors were brought in and there is no averment by affidavit, petition or otherwise that his appearance was not with their knowledge and authority. An attorney is an officer of the court into which he is admitted to practice. His admission and license to practice raise a presumption prima facie in favor of his right to appear for any person whom he undertakes to represent. When his authority to do so is questioned or denied the burden of overcoming this presumption rests on him who questions or denies his authority, and such person must show by affidavit the existence of facts tending to overcome the presumption before the attorney can be called upon to file his warrant of attorney: Danville, Etc., R. R. Co. v. Rhoades, 180 Pa. 157. It was said in McCullough v. Ry. Mail Assn., 225 Pa. 118, “It is a familiar rule of practice in this State that an appearance by the defendant cures any defect or irregularity in the service of the writ. A defendant may appear in person or by counsel. If he appear by counsel, the latter causes his name to be entered on the record.” A defendant can not deny the jurisdiction of the court and at the same time defend the cause on its merits which implies a submission to its jurisdiction. The same rule is supported in McAlpine St., 40 Pa. Superior Ct. 268. After an appearance in a trial on the merits the plaintiff ought not to be deprived of the result on the theory that the defendant was not regularly in court without some evidence from the latter that the attorney assuming to represent him was not authorized so to do. The learned trial judge based his conclusion on the decision in Hill v. Truby, Townsend’s App., 117 Pa. 320, but in that case as appears from the opinion the record did not inform the court how the representatives of the deceased party were brought in nor that they were brought in at all. It did not appear by whose authority or direction the substitution was made nor did the record show an appearance for the administrators. Under such circumstances the court held that the record was defective and would not sustain a verdict and judgment. The case is unlike that before us in these respects. We are of the opinion that the record does not exhibit a state of facts which supports the action of the court below. The motion for a new trial does not appear to have been disposed of below and the record will therefore be remitted to enable the court to dispose of that subject.

The judgment is reversed and the record remitted to the court below for further proceedings.  