
    Schneider v. Rauch.
    (Decided November 27, 1933.)
    ' Mr. Charles H. Elston, for plaintiff in error.
    
      Mr. Wm. J. Schick and Mr. Ray Hicks, for Martin Rauch, administrator.
   Hamilton, P. J.

The question in this ease was presented to this court on a motion to dismiss the petition in error' for failure to make proper service on Josephine Rauch, defendant in error, and upon application of the plaintiff in error to amend the petition in error.

The record discloses that Josephine Rauch secured a judgment against Margaret Schneider, plaintiff in error here, in an original action in the Court of Common Pleas. From that judgment, Margaret Schneider prosecuted error to this court. After the judgment was entered in the Court of Common Pleas, and before the error proceedings were perfected, Josephine Rauch, the judgment creditor, died, and an administrator was appointed of her estate. The petition in error was filed, and summons in error was served upon counsel, who was attorney of record in the original case filed in the Court of Common Pleas. This service was made subsequent to the death of Josephine Rauch.

It is contended by counsel for defendant in error that this service could not be made upon counsel, for the reason that they were not counsel at the time the service was made, since their client had died and an administrator had been appointed, and they were not counsel for the administrator.

The question is: Was this service, made upon the attorney of record in the original case in the Court of • Common Pleas, sufficient?

Section 12259, General Code, provides for making service in an error proceeding. The pertinent part of the section is as follows: ‘ ‘ The proceedings to obtain such reversal, vacation, or modification shall be by petition in error, filed in a court having power to make the reversal, vacation or modification, setting forth the errors complained of. Thereupon a summons shall issue and be served’ or publication made, as in the commencement of an action. A service on the attorney of record in the original case shall be sufficient.” (Italics ours.)

In Akron & Chicago Junction Rd. Co. v. Weedman, Exr., 83 Ohio St., 88, 93 N. E., 528, the court' had Sections 6713 and 6714, Revised Statutes, now Sections 12259 and 12260, General Code, under consideration, and held that the 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, and the waiver of counsel is good, even though the prevailing party died before the filing of the petition in error.

It is true that, in the Weedman case, the court makes the observation that the fact of such death was not known to the adversary party or counsel. It is claimed in this case that counsel knew of the death of Josephine Rauch at the time he filed the petition in error and caused summons in error to be served upon counsel of record. It will be noted, however, that Section 12259, General Code, makes no exception in the case of death. It provides, as above stated: “A service on the attorney of record in the original case shall be sufficient.” This was done in the instant case, and the service was good. This disposes of the motion to dismiss for failure to make service.

On the application to amend the petition in error, Akron & C. J. Rd. Co. v. Weedman, Exr., supra, is authority for the granting of the application. In the second paragraph of the syllabus of that case it is stated: “In such ease 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 * * *.”

The usual method of bringing the administrator into the case would be by an application to substitute the administrator as a party defendant. However, no material difference is presented by granting leave to amend, making the administrator a party, or by substitution. The application to amend the petition in error, by making the administrator a party defendant, is granted.

Application to amend granted.

Cushing, and Ross, JJ., concur.  