
    The Akron & Chicago Junction Railroad Co. v. Weedman, Executor.
    
      Unknown death of defendant in error — Before filing of petition in error — Written waiver of summons by counsel — Jurisdiction of circuit court on error complete — Sections 6713 and 6714, Revised Statutes — Executor should be made party defendant — Amendment — Section 5114, Revised Statutes.
    
    1. In view of the provisions of Sections 6713 and 6714, Revised Statutes, counsel authorized to represent the party who prevails in the court of common pleas is empowered to waive summons in error upon a petition in error in the circuit court for its reversal, and there being such waiver in writing the jurisdiction of the. circuit court is complete, even though the prevailing party dies before the filing of the petition in error, the fact of such death not being known to the adversary party or to counsel. (McGuire et al. v. Ranney, 49 Ohio St., 372, overruled.)
    2. In such case the death of the prevailing party being made known in the circuit court, his executor should be made a party defendant by amendment of the proceeding which is authorized by Section 5114, Revised Statutes.
    (No. 11573
    Decided November 22, 1910.)
    
      Error to the circuit court of Huron county.
    On the 25th of January, 1907, Mrs. Ramey recovered a judgment in the court of common pleas against the railroad company in an action upon contract. On the third of May, 1907, the company filed a petition in error in the circuit court for the ' reversal of that judgment. The issuance and service of summons on said petition in error was waived and the appearance of Jane Ramey was entered by the following endorsement on said petition in error and by her attorneys of record in the court of common pleas:
    “Now comes Jane Ramey, the defendant in error in the above entitled error proceeding, by C. P. Wickham and E. M. Palmer, her attorneys of record in the original action, and also her attorneys in this error proceeding, and waives the issuance and service of summons in error in this proceeding in error and enters her voluntary appearance herein.
    “E. M. Palmer and
    “C. P. and L. W. Wicki-iam,
    
      “Attorneys for Defendant in Error.”
    
    At two terms of the circuit court the hearing of said proceeding was continued, once upon the application of counsel for the company, and once upon the application of counsel for Mrs. Ramey. Thereupon it was learned by counsel that Mrs. Ramey had died on the 9th of March, 1907, though the fact of her death was not previously known by her own counsel, nor by any of the attorneys or officials of the company. Upon that discovery, on September 10, 1908, C. B. Weed-man, who had been qualified as executor of her will by the same counsel who had represented her on the trial of the cause in the court of common pleas, filed the following motion in the circuit court:
    “Now comes C. B. Weedman, as executor of last will and testament of Jane Ramey, deceased, and not entering his personal appearance herein, but appearing only for the purposes of this motion, and protesting against the jurisdiction of this court in the above entitled proceeding, and of himself as such executor, moves the court to dismiss' said 'proceeding for the reason that on the 12th day of March, A. D. 1907, said Jane Ramey, deceased, departed this life, and summons in error did not issue within four months from and after the rendition of the judgment, sought in said proceeding to be reversed, nor has service of the same even been had upon him as such executor.
    “E. M. Palmer,
    “C. P., L. W. & R. D. Wickham, '
    
      “Attorneys for C. B. Weedman, Administrator of the Estate of Jane Ramey, deceased
    
    Thereupon, on September 14, 1908, counsel for the company filed in the circuit court the following motion for the amendment of said proceeding:
    “Now comes the plaintiff in error in the above entitled error proceeding, and moves the court to amend, upon proper terms, the petition in error heretofore filed herein, and the record of said proceeding, by striking therefrom the name of Jane Ramey, and by adding in lieu thereof the name of C. B. Weedman, as executor of Jane Ramey, and by adding to said petition in error proper averments, showing the death of said Jane Ramey, and the appointment and qualification of said C. B. Weedman as her executor, and as ground therefor says:
    “That said proposed amendments are in furtherance of justice, and that said final judgment sought to be reversed in said error proceeding was rendered in the original action in the court below at the January term thereof, 1907, and on the 25th day of January in said year; and that said Jane Ramey departed this life on the 9th day of March, A. D.- 1907; and that said C. B. Weedman was duly appointed and qualified as her executor on the 18th day of March, A. D. 1907, by the court of probate in and for the county of Huron, and state of Ohio; and that at the time, to-wit, May 3, 1907, said petition in error was filed in this court, and said error proceeding commenced, said executor had due and legal notice and knowledge thereof, and duly entered his voluntary appearance in said error proceeding, and from thence forward until after the last term of this court, treated the same as duly pending in this court, and having had due notice and knowledge of the pendency of said proceeding, and the purpose thereof, ever since the same was filed therein, he is now estopped "to claim to the contrary; and that through mistake and inadvertence the name of Jane Ramey was inserted in said petition in error and so filed, instead of the name of C. B. Weedman, as her executor, and as defendant in error in said proceeding; and that this plaintiff in error did not know, nor did anyone of its attorneys know of the death of said Jane Ramey until about the 28th day of June, A. D. 1907, but the attorneys in the original action for Jane Ramey, and said C. B. Weedman, her executor as aforesaid, and his general attorney in the settlement of her estate, did know of her death at all the dates hereinbefore stated subsequent to that of her death, and that in their conduct in reference to said error proceeding in this court, said attorneys and said executor treated the same as duly commenced and pending against said executor, and in all their negotiations with the plaintiff in error, and its counsel, and in their statements to this court, they in ‘like manner, treated said error proceeding as duly commenced and pending against said Weedman as such executor, and that said attorneys and said executor, by their conduct and statements aforesaid, misled this plaintiff in error and its attorneys into the honest belief that said Jane Ramey was in full'life on said third day of May, A. D. 1907, and for about two months thereafter.
    “Wherefore, this plaintiff in error prays that said original petition and said record may be amended by striking therefrom the name of Jane Ramey, and by inserting in lieu thereof the name of C. B. Weedman, as executor of the last will and testament of said Jane Ramey, and by adding
    
      thereto appropriate averments showing the death of said Jane Ramey/ and the appointment and qualification of said Weedman as her executor; and that said executor may be adjudged to be es-topped from claiming that he is not, and never was a party defendant to said error proceeding, and that it may have such other and further relief in that behalf as the facts and justice may require.
    “Arrel, Wilson & Harrington,
    
      “Attorneys for the Defendant in Error.’"
    
    All the material facts alleged in these motions were, and are, admitted to be true. The circuit court overruled the latter motion and sustained the former, and this is assigned here as error.
    
      Messrs. Arrel, Wilson & Harrington and Mr. W. Severance, for plaintiff in error, cited and commented upon the following authorities:
    
      Railway Co. v. Bailey, 70 Ohio St., 88; Railway Co. v. Elyria, 69 Ohio St., 414; City of Toledo v. Converse et al., 65 Ohio St., 401; Irwin et al. v. Bank, 6 Ohio St., 81; Ireland v. Ireland, 11 C. C., 565; Doty et al. v. Rigour & Co., 9 Ohio St., 519; Negley v. Jeffers et al., 28 Ohio St., 90; Snider’s Exrs. et al. v. Young et al, 72 Ohio St., 494; Secor v. Witter, 39 Ohio St., 218; McGuire et al v. Ranney, 49 Ohio St., 372; Spalding v. Wathen, 7 Bush (70 Ky.), 659; Sections 5114, 6713 and 6714, Revised Statutes.
    
      
      Mr. E. M. Palmer and Messrs. C. P., L. W. & R. D. Wickham, for defendant in error, cited and commented upon the following authorities;
    
      Railway Co. v. Bailey, 70 Ohio St., 88; Railway Co. v. Elyria, 69 Ohio St., 414; City of Toledo v. Converse, 65 Ohio St., 401; Snider’s Exrs. v. Young, 72 Ohio St., 494 ; Pope v. Insurance Co., 24 Ohio St., 481; Kennard v. Kennard, 35 Ohio St., 660; Waldron v. Fuchs, 62 Ohio St., 633; Roberts, Exr., v. Roberts, Jr., 61 Ohio St., 96; McGuire v. Ranney, 49 Ohio St., 372.
   Shauck, J.

If it is assumed that attorneys-at-law are agents in the ordinary sense only of the parties whom they represent in courts of justice, the familiar rule that the authority' of an agent is revoked by the death of his principal affords justification for the action of the circuit court in overruling the motion of the plaintiff in error to amend the proceeding in error, as well as in sustaining that of the defendant in error to dismiss ' it. But the subject of a proceeding in error is the judgment whose reversal is sought. Although, unlike an appeal, a petition in error is requisite as the basis of the proceeding, legislation designed to make the proceeding practicable and to relieve it, as far as may be, of difficulty and uncertainty, naturally considers the intimate relation of the jurisdiction exercised by the original and appellate courts, as well as the peculiar representative character of counsel who represent parties in the court of first instance. To facilitate the acquisition of jurisdiction in the reviewing court, and to prevent its failure, Sections 6713 and 6714, Revised Statutes, were enacted. The former section provides that service of the summons in error shall be sufficient if made on the attorney of record in the original case. Section 6714 provides: “The summons mentioned in the last section shall, upon the written precipe of the plaintiff in error, or his attorney, be issued by the- clerk of the court in which the petition is filed, to the sheriff of any county in which the defendant in error, or his attorney of record is found * * * and the defendant in error, or his attorney, may waive in writing the issue or service of the summons.”

To say that counsel who appear as representatives of parties litigant can have no authority except that which depends upon the terms of their employment, or its actual continuance, or which is subject to annulment by any act of the parties, or that it may be revoked in any way by one party without the knowledge of his adversary and to his prejudice, even to the extent of defeating the review of a judgment, is to deny all effect to these provisions of the statute and to introduce unnecessary confusion and uncertainty. It results from these provisions that when a party authorizes an attorney to represent him in the court of record in which the cause is originally tried, he thereby authorizes him to represent him in the steps required to effect the jurisdiction of the reviewing court, and that until that jurisdiction is effected, a revocation of his authority, to be effective, must be of record.

The jurisdiction of the circuit court was complete when the counsel who had represented Mrs. Ramey in the court of common pleas, in strict pursuance of the terms and obvious purpose of the statute, entered in writing their waiver of a summons on the petition in error, and the circuit court should have not only overruled the motion to dismiss the proceeding, but it should have sustained the motion for the amendment of the proceeding. It cannot be necessary to repeat recent discussions which have conducted this court to the conclusion that Section 5114, Revised Statutes, provides for the amendment of proceedings in error and that it extends to such amendment as was here sought. The cases have been intelligently collected by counsel and they will be found in the reporter’s abstract of the briefs.

The action of the circuit court in dismissing the petition in error was in accordance with the decision in McGuire et al. v. Ranney, 49 Ohio St., 372. But in that case the statute authorizing service of summons in error upon the attorney of record in the original case, and authorizing such counsel in writing to waive the issuance of summons, does not appear to have been cited by counsel nor considered by the court. The basis of the conclusion reached in that case was thus stated by the court: “The decease of the defendant in error terminated the authority of the attorneys of record in the original case, and hence the entry of appearance on the petition in error is without legal effect.” However obviously that proposition comports with the general law of agency it cannot be reconciled with the statutory provisions above cited, nor with the considerations which should control in the administration of remedial statutes. That case is overruled: The order of the circuit court will be reversed and the cause will be remanded to that court with instruction to overrule the motion to dismiss the petition in error and grant the motion to amend and for further proceedings.

Judgment reversed.

Summers, C. J., Crew, Spear, Davis and Price, JTJ., concur.  