
    Snider’s Exrs., etc., et al. v. Young et al.
    
      Same plaintiffs in joint judgment — Made parties defendant in error — Appearance effected hy service within statutory limit —Proceedings deemed commenced as to all parties at interest — Statute of limitations — Court may add names of omitted defendants — Court proceedings — Pleadings.
    1. When some of tbe plaintiffs in a joint judgment are made parties defendant to a petition in error to reverse tbe judgment and their appearance in the proceeding has been effected by service of process or otherwise, within the statutory limit for commencing proceedings in error, the proceedings must be deemed commenced, not only as to such defendants, but also as to all other persons united in interest with them, so as to stop the running of the statute of limitations in favor of such other persons who are not made defendants.
    2. The court in such case may amend the proceedings by adding to the petition in error as defendant thereto the names of the persons who had been omitted, and causing service to be duly made on such persons, although application for such amendment has not been made, or such defect of parties has not been brought to the notice of the court, until after the statutory period for commencing proceedings in error has elapsed.
    3. The second and third propositions of the syllabus in Smetters v. Rainey, 14 Ohio St., 287, are overruled.
    (No. 9291
    Decided May 23, 1905.)
    Error to the Circuit Court of Clark county.
    The defendants in error, among whom is one John Shuman, commenced an action in the court of common pleas of Clark county to contest the will of Martin Snider, deceased, the plaintiffs in error here being defendants there; and on the twenty-ninth day of February, 1904, a judgment was rendered by said court of common pleas, upon a verdict theretofore rendered, annulling the said will and the probate thereof, and adjudging the costs against the defendants.
    On the twenty-third day of April, 1904, the defendants filed a petition in error in the circuit court of Clark county to reverse the said judgment; but by mistake the name of John Shuman, one of the plaintiffs recovering the judgment below, was not included among the defendants to the petition in error. The defendants in error named in the petition in error, on the same day entered their appearance.
    On the twelfth day of July, 1904, in vacation, the plaintiffs in error filed their application for leave to amend the petition in error by making the said John Shuman a defendant in error.
    On December 5, 1904, the defendants in error moved to dismiss the case, for the reason that the court had no jurisdiction to grant relief in the case because one of the plaintiffs in the court below (John Shuman) had not been made a party to the proceeding in error, either as plaintiff or defendant; and on the ninth day of December, 1904, the circuit court refused leave to amend the petition in error by making John Shuman a party defendant, granted the motion of the defendants in error to dismiss the case for the reason stated in the motion, and rendered a judgment against the plaintiffs in error for the costs. This proceeding in error is prosecuted in this court to reverse that judgment of the circuit court. '
    
      Mr. F. M. Hagan; Mr. John L. Zimmerman and Mr. W. W. Witmeyer, attorneys for plaintiff in error.
    Counsel for defendants in error contend that a proceeding in error is not commenced even against persons who in the action below are united in interest, unless they are all served with summons or enter their appearance before the statutory period fixed for the commencement of a proceeding in error.
    Counsel seem to ignore section 4987, Revised Statutes, construed in Bechtold v. Fisher, 5 Circ. Dec., 685; 12 C. C. R., 559, to the effect that this section, by analogy, applies to proceedings in error. To the same effect, the supreme court of Kansas has construed a like provision of the code of that state. Barber Asphalt Co. et al. v. Botsford et al., 50 Kan., 331 (31 Pac. Rep., 1106).
    
      Railroad Co. v. Bailey, 70 Ohio St., 88, is really in point, though specially referring only to section 5114, Revised Statutes, as applicable to proceedings in error.
    Counsel for defendants in error rely for their contention mainly on the case of Smetters v. Rainey, 14 Ohio St., 287, and of course if that case is to stand as authority here, their contention is sound. But it appears in tracing the history of the case from the time the decision in it was made to the present, that it is entitled to but little, if any, weight because though approved in some instances it has been disapproved in other cases and severely criticised, limited and distinguished in others, though never technically overruled. Moreover, in other cases, that of Buckingham v. The Bank, 21 Ohio St., 131, a decision is made radically opposite in doctrine. Briefly tracing the history of Smetters v. Rainey, we find the following facts: In Robinson v. Orr, 16 Ohio St., 285, it is cited, but not on the point here in question. In Bradford v. Andrews et al., 20 Ohio St., 208, a proceeding for the contest of a will, the court holds in conflict with Smetters v. Rainey though not feeling itself required to overrule the same, Judge Welsh, however, announcing that it ought to be overruled whenever the case should be proper therefor. In Jones v. Marsh, 30 Ohio St., 20, Smetters v. Rainey is expressly approved. In Hempy v. Ransom, Smetters v. Rainey is cited, but not on this point. In King v. Bell, 36 Ohio St., 460, Smetters v. Rainey is cited in support of a proposition that all parties to a judgment should be parties in error, but this proposition is not in conflict with the point we seek to make in the present case. In Secor v. Witter, 39 Ohio St., 218, Smetters v. Rainey is severely distinguished.
    In Bank v. Green, 40 Ohio St., 431, Secor v. Witter is followed and approved and the court says that on the question of jurisdiction, Smetters v. Rainey is not sound because the defendants in error in Bank v. Green were so united in interest that service of a summons upon one, prevented the running of the statute as to the other and that had the district court been informed of the defect of parties, the missing person could and should have been brought in before the final disposal of the case, citing Buckingham v. The Bank, 21 Ohio St., 131. Here Smetters v. Rainey was overruled to all intents and purposes, the only addition which could have made such overruling more emphatic would have been the use of the word overruled. Yet strange to say, in Burke v. Taylor, 45 Ohio St., 444, the court in the case, the entire record of which is comprised within ten lines, approves Smetters v. Rainey and Jones v. Marsh without giving reasons therefor. Yet three years later in Wangerien v. Aspell, 47 Ohio St., 250. Smetters v. Rainey is treated as a case which had been generally criticised and the application therefore limited whenever under consideration by the court. "When we substitute section 4987 of the present code for section 20 of the old code, we have the court thus announcing the very principles for which we contend in this controversy. Well might the court say in Railway Co. v. Bailey, 70 Ohio St., 88, in which the last reference to Smetters v. Rainey occurs, that it “had been adversely criticised,” yet at the same time holding with it virtually that the code provisions are applicable to proceedings in error where there are no special provisions. In the light of all these decisions, what weight should now be given to Smetters v. Rainey? It is plainly against the liberal tendency of the practice in Ohio. It defeats substantial justice.
    Opposing counsel contend that section 4987, Revised Statutes, does not apply to any person not formally made a party defendant within the period of limitation.
    
      We think this is a distinction without substance. If the action is commenced by service upon persons united in interest with others not served and not formally made defendants, every purpose of justice is subserved by bringing them in at any time after-wards, either before or after the period of limitation expires.
    Opposing counsel insist that all parties to a joint judgment must be before the reviewing court in order that it may either affirm or reverse the same, or at least that all persons who are favored by the judgment of the lower court must be defendants in error, to authorize the reversal of the judgment.
    Whether this is true in all cases may well be doubted, but the question is immaterial to the present controversy, as, if our view is correct, John Shuman was a party to the record in the proceeding in error, or if such was not the case, the right existed to make him a party defendant, prior to the rendition of the judgment. ’The affidavits filed herein for plaintiffs in error show that the omission to name John Shuman as a party defendant in the case below was a mere clerical error, and that the intention of counsel for plaintiff in error was to make him a party defendant.
    But opposing counsel in the present case rest their contention on the alleged principle that all necessary parties must be in court within the period of limitation in order to vest the court with jurisdiction.
    If this is true, then it is immaterial how persons come in afterwards whether co-plaintiffs or co-defendants, voluntarily or involuntarily.
    If a necessary party has been omitted by mistake and the court has acquired jurisdiction, the court in which the proceedings in error are to be determined, can bring into court the necessary party, even after the time has expired for filing the original petition. Bradford v. Andrews, 20 Ohio St., 208; Secor v. Witter, 39 Ohio St., 218; Buckingham et al. v. Bank, et al., 21 Ohio St., 131; Bank v. Green, 40 Ohio St., 431; Wangerien v. Aspell, 47 Ohio St., 254.
    The interests of John Shuman in the outcome of the petition in error were identical with the other defendants and were protected and defended in the same way. No individual defense could have been made' in this case which would not at the same time involve the common interests of all the defendants in error. And the weight of the testimony from the affidavits, shows that John Shuman’s interests were looked after in exactly the same way as the interests of the other defendants in error, and in fact they could not have been protected with any other than the same means that were used for the other defendants in error. And all parties, including John Shuman and Keifer & Keifer, believed he, John Shuman, was in court, the same as the other defendants, until it was accidentally discovered that his name had been inadvertently omitted by the scrivener.
    It is contended that if John Shuman had been named as a party defendant, the case would have been different. In the case of Ewing v. Hollister, 7 Ohio, pt. 2, 138, the statutes required that infants be made defendants, the court say: “That, none but parties or privies can prosecute a writ of error will not be denied. But if I rightly understand the assignment, counsel are mistaken. The error complained of is this, not that the plaintiffs are not parties to the record, but that they are not parties to the petition. Were they not parties to the record, there might be some difficulty in the case, as there is no extrinsic evidence to show that they are the heirs of the intestate, or that they had ever any interest in the land. ’ ’
    And the court further say on page 144: “It is objected, however, that these plaintiffs were not made defendants in the petition. True, they were nor, nor were they subsequently made defendants by a formal amendment to the petition. But that which is equivalent was done. They .are parties defendant upon the record, made so by' the voluntary appearance of one who had the custody of their persons and property, and whose duty it was to attend to their interests. They had a day in court, and the law under which the proceedings were carried on has been substantially complied with. It was so decided by this court in the case of Lessee of Ewing v. Rigby, 7 Ohio, pt. 1, 198, in which this identical question was raised and discussed.”
    This case (7 Ohio) is approved in Snerely v. Lowe, 18 Ohio, 368; Nichols v. State, 71 Ohio St., 335.
    Section 3713, Revised Statutes, states in proceedings in error “a service on the attorney in the original case shall be sufficient.” The attorney in the original case is made to stand for the parties in whose service he acted, and a warning to such attorney is sufficient notice.
    
      Is John Shuman in court¶ He says in his affidavit “he was a defendant in error and Keifer & Keifer represented him and appeared for him and in his behalf. ’ ’
    Keifer & Keifer thought they represented him, for in their letter to the circuit court, they said: ‘ ‘ They did not know which name was omitted. ”
    ' Keifer & Keifer argued the case orally and filed a brief for Catharine Young et ah, in ‘which they say the defendants in error were the plaintiffs below.
    It is not denied but that the court must look to the record to determine if all the parties below are parties to the suit in error. If this is the case, then the court can look to the records to see who was represented by Keifer & Keifer.
    In this case the circuit court did not decide the case upon its merits. The case was submitted to them on the fifth of May, 1904. The time for serving summons in error in ordinary cases expired June 30, 1904, but upon motion filed December 5, 1904, dismissed the case for want of jurisdiction.
    In a case involving large interests, where the attorney of record below appeared in the circuit court and argued the case on its merits on the fifth of May, within the time when if any defects had been discovered they could have been remedied, where the party’s interests were fully protected, it is not in the interests of justice to dismiss an action of this kind for want of jurisdiction.
    
      Messrs. Keifer & Keifer, attorneys for defendants in error.
    An error proceeding in Ohio is an independent action — not like an appeal which vacates the judgment appealed from. Swan v. Railroad Co., 5 Dec., 297; 3 N. P., 225; Hammond v. Hammond, 21 Ohio St., 626.
    The right to prosecute error exists only by statute; and proceedings in error are to be strictly construed. Young v. Shallenberger, 53 Ohio St., 302; Burke v. Taylor, 45 Ohio St., 444; Bechthold v. Fisher, 5 Circ. Dec., 685; 12 C. C. R., 561; Taylor v. Boyd, 3 Ohio, 354; Page v. McConville, 6 Circ. Dec., 631; 10 C. C. R., 321.
    The question here is one of jurisdiction. With Shuman not a party the circuit court “acquired no jurisdiction of the case and the petition should be dismissed.” Bowen v. Bowen, 36 Ohio St., 312; O’Donnell v. Downing, 43 Ohio St., 62; Piatt v. Sinton, 35 Ohio St., 282; Jones v. Marsh, 30 Ohio St., 20; Smetters v. Rainey, 14 Ohio St., 287; Kreis v. Drott, 67 Ohio St., 516; Loewenstein v. Rheinstrom, 10 Dec., 587; 8 N. P., 235; Paving Co. v. Botsford, 50 Kan., 331.
    “A judgment is a unit;” it therefore cannot be reversed as to some and allowed to stand as to others who are parties to it. Especially is this true as to a judgment setting aside a will. Railway Co. v. Burke, 54 Ohio St., 140; Buckingham v. Bank, 21 Ohio St., 131; Robinson v. Orr, 16 Ohio St., 287.
    The claim that negligence is an excuse for not making the necessary parties to a petition in error is a novelty. The neglect to make‘one necessary party a defendant is as fatal as to fail to make any larger number defendants. As well might a party ask to have the four months’ limitation set aside on the plea that he intended to have brought a suit within the period, but failed through his own neglect. Even equity does not relieve against negligence. Elliott v. Elmore, 16 Ohio, 27; Pollard v. Collier, 8 Ohio, 43; Green v. Dodge, 6 Ohio, 80, 83; Dorflinger v. Coil, 2 Ohio, 311.,
    The thing a party asks to be relieved from must be “unmixed with negligence on his part.” Duncan v. Lyon, 3 John. Ch. R., 356. •
    A diligent endeavor of a plaintiff in an error case to have a summons duly issued and served is held necessary. Railroad Company v. Ambach, 55 Ohio St., 553.
    
      The circuit court had no jurisdiction. The four months’ limit expired June 30, 1904. Section 6723, Revised Statutes.
    After that time, as we have seen, it would have availed nothing to make John Shuman a party in the circuit court.
    Shuman is not a party, “the court acquired no jurisdiction of the case and the petition should be dismissed.” Young v. Shallenberger, 53 Ohio St., 291; O’Donnell v. Downing, 43 Ohio St., 62; Burke v. Taylor, 45 Ohio St. 444; Veach v. Kerr, 41 Ohio St., 179.
    All interested parties to the judgment are necessary to give the reviewing court jurisdiction over the subject-matter. Jones v. Marsh, 30 Ohio St., 20. “It is error to reverse or modify a judgment without having the parties before the court, affected by such reversal or modification.” Tod v. Stambaugh, 37 Ohio St., 469. The last two cases have never been questioned, but often followed.
    The Smetters v. Rainey, 14 Ohio St., 287 (fully in point, all agree), has been, on some points, growled at in obiter dictum, as to its application to particular cases, but it has never been overruled, and it has been followed and approved in many of the cases cited, supra, and in numerous others. Kreis v. Drott, 67 Ohio St., 516; Robinson v. Orr, 16 Ohio St., 284; Hammond v. Hammond, 21 Ohio St., 626; Hempy v. Ransom, 33 Ohio St., 312; King v. Bell, 36 Ohio St., 460; Abair v. Bank, 2 Circ. Dec., 165; 3 C. C. R., 290; Page v. McConville, 6 Circ. Dec., 631; 10 C. C. R., 316; Loewenstein v. Rheinstrom, 10 Dec., 587; 8 N. P., 235.
    
      In the last case the superior court in general term, Cincinnati, reviews Smetters v. Rainey and other cases, finding that ease has never been overruled, and, as a result, formulates the following syllabus: Loewenstein v. Rheinstrom, 10 Dec., 587; 8 N. P., 235; Kreis v. Drott, 12 Circ. Dec., 727; 21 C. C. R., 790.
    And the Lucas circuit court (Scribner, J.) made a still fuller review of all the then cases on the subject, reaching the conclusion Smetters v. Rainey was sound, and had never been reversed. Abair v. Bank, 2 Circ. Dec., 165; 3 C. C. R., 290; Page v. McConville, 6 Circ. Dec., 631; 10 C. C. R., 321; Werk v. Christie, 6 Circ. Dec., 255; 9 C. C. R., 439; Lumber v. Marcy, 7 Circ. Dec., 444; 14 C. C. R., 612; Ervin v. Mathers, 9 Circ. Dec., 847; 18 C. C. R., 199; Kreis v. Drott, 12 Circ. Dec., 727; 21 C. C. R., 790.
    The judge in Bradford v. Andrews, 20 Ohio St., 208, for himself, threatens Smetters v. Rainey. The case was not one in error where it is necessary to have all the parties before the court to give it jurisdiction,» its jurisdiction being wholly dependent on the statute.
    The syllabus of Bradford v. Andrews contains nothing on the question, and the judge says the cases are “not identical, and the question need not be passed on.”
    The judge in Secor v. Witter, 39 Ohio St., 226, doubts Smetters v. Rainey, and says “the principle there stated should not be extended,” and that the facts of that case are unlike the one under consideration. There was no want of parties in the SecorWitter case — all the defendants were before the court, and the only question was whether one of the partnership bringing the suit could be allowed to be named. The suit was brought “in behalf of all who were members of the firm.” The court had jurisdiction whether -he was- a party individually or not. Smetters v. Rainey is, in that case, only distinguished to show it does not prohibit amendments where jurisdiction has attached.
    In the case of Bank v. Green, 40 Ohio St., 431, the judge in the opinion seems to think Smetters v. Rainey not sound where the defendants in error “were so united in interest that service of a summons upon one prevents the running of the statute as to the other.” But even this principle, in the light of the Ohio cases, is not sound.
    And we have seen such a rule would not apply, if sound, in our case. And the judge says the court would have followed Smetters v. Rainey if it appeared the absent party was, in any way, injured by the reversal.
    The case of Wangerien v. Aspell, 47 Ohio St., 250, in which Smetters v. Rainey is mentioned, did not raise any question of want of parties defendant.
    There is no case to be found overruling Smetters v. Rainey; and in all the cases where it was really applicable, it has been followed. It has become the habit now to decide cases on its authority. Kreis v. Drott, 67 Ohio St., 516.
    It is too late for counsel to ask that Smetters v. Rainey and the long line of cases holding the same principle should be overruled.
    The holdings in the United States courts are in harmony with the rule that in error proceedings, all parties to the judgment below must be joined, or the proceeding must be dismissed. Hampton v. Rouse, 80 U. S., 187; Simpson v. Greeley, 87 U. S., 152; Masterson v. Howard, 10 Wall., 416; Williams v. 
      Bank, 11 Wheat., 414; Terry v. Abraham, 93 U. S., 38; Trust Co. v. Clark, 83 Fed. Rep., 230; Elevator Co. v. Nichols, 91 Fed. Rep., 832; Loveless v. Ransom, 107 Fed. Rep., 626.
    The case last cited, like others, holds the want.of parties may be taken advantage of at any time.
    And snch is the uniform holding in the courts of states other than Ohio. A very few of the many are here cited. Bozeman v. Cale, 139 Ind., 187; Bank v. Reid, 154 Ind., 54; Pierce v. Downey, 56 Kan., 250; Court v. Howard, 76 Ky., 101; Campdoras v. Brooks, 49 Pac. Rep., 628; Bank v. Iron Co., 49 Pac. Rep., 159; Cattle Co. v. Bank, 52 Pac. Rep., 76 (960); Manufacturing Co. v. Dry-Plate Co., 75 N. W. Rep., 1099; Schrage v. McCoy, 63 N. E. Rep., 50. And see, collated cases from different states. 2 Am. Digest, pp. 2138-9, etc.
   Davis, C. J.

A question is made in the record and argued by counsel, whether Shuman had entered his appearance to the petition in error in the circuit court. We think that he did not enter his appearance; and therefore the sole question in the ease is, whether or not the circuit court erred in refusing leave to the plaintiffs in error to make Shuman a party defendant, and in dismissing the case for the reason stated. If Smetters v. Rainey, 14 Ohio St., 287, is to stand as a correct statement of the law, then the judgment of the court below was right; but that case has been so frequently and continuously doubted, distinguished, limited, criticised, assailed, and almost, if not quite, expressly overruled in this court, that it now seems necessary to test its foundations anew.

It will go without dispute, as was laid down in Smetters v. Rainey, 13 Ohio St., 568; Idem, 14 Ohio St., 287; Jones v. Marsh, 30 Ohio St., 20; Tod v. Stambaugh, 37 Ohio St., 469; Veach v. Kerr, 41 Ohio St., 179; Burke v. Taylor, 45 Ohio St., 444, and in many other cases, both before and since these, that all persons who -are jointly interested in a judgment which is sought to be reversed or modified, must be made parties to the proceedings in error before the reviewing court can render a judgment reversing or modifying it. But that doctrine stops very far short of the proposition that there can be no amendment to a petition in error, to correct a clerical error or mistake, by adding the name of a person who was directly interested in, and a party to, the judgment below; nor does it even lead to the conclusion that no such amendment can be made after the statutory limit of time within which a proceeding in error may be commenced, which was in this case four months from the rendition of the judgment. I shall presently endeavor to make it clear that, when there is a unity of interest as to the judgment, a denial of the right to so amend a proceeding in error after four months has elapsed since the rendition of the judgment which is to be reviewed, is a denial of the right to amend at any time; for if the right to amend exists after the statutory limit, it must be because the case was “commenced” so as to toll the statute of limitations as to all persons united in interest, and if the right does not exist after the statutory limit it must be because the case was not so “commenced” within the statutory period. If the action should be properly commenced as to some of the joint parties and leave is asked to amend and bring in the other parties before the expiration of the statutory period, the leave can only he allowed by the analogy of the code procedure in other cases, because there are no provisions therefor expressly relating to proceedings in error. Railway Co. v. Bailey, 70 Ohio St., 88. This seems to be conceded in Smetters v. Rainey, both in the syllabus and in the opinion. We have not been able to discover any satisfactory reason why, if the code provisions in sections 5114, 5005, 5006 and 5007, Revised Statutes, may be applied to error proceedings, section 4987, Eevised Statutes, may not also be so applied. Hence, as we have said, the denial of the right to amend after the statutory period has expired is logically the denial of the right to amend at any time,

If the action should be properly commenced as to some of the joint parties, then, as we shall show, the statute ceases to run as to the other joint parties. This proposition Smetters v. Rainey ‘denies. The logic of Smetters v. Rainey would therefore seem to lead to the conclusion that a proceeding in error must be like Minerva when she sprang from the head of Jupiter, full grown and perfect in the beginning, born of the gods and without human frailty.

But such relentless severity is foreign to the spirit of the modern procedure. Accordingly this court has, in several instances, applied to proceedings in error, by analogy, the liberal provisions of the code of civil procedure relating to “civil actions:” and one of these is the ample power of amendment conferred by section 5114, Revised Statutes. Railway Co. v. Bailey, 70 Ohio St., 88. The only comment on this section which need be made is the following terse quotation from the opinion in Shamokin Bank v. Street, 16 Ohio St., 7. “The general power of amendment given to the courts by the code is very broad, and is only limited by tbe ‘ justice ’ of tbe ease. But tbe statutory thing to be amended must exist before tbe power can be exercised.” Does tbe thing to be amended exist here? Had tbe circuit court such jurisdiction of tbe case and of tbe parties before it, as to enable it to bring in other necessary parties ?

Tbe original judgment set aside a will. If it was set aside as to one of tbe persons interested it was set aside as to all. If that judgment should be reversed as against some of tbe contestants it necessarily must be reversed as to all of them. Tbe judgment is an entirety and inseparable. For that reason all of tbe parties to tbe judgment must be in court before it can be reversed. Buckingham v. Bank, 21 Ohio St., 131; Bradford v. Andrews et al., 20 Ohio St.. 208. Here, a case involving tbe rights of everybody interested in that estate was properly in court. All necessary parties were in court, except one who refuses to come in, bis name being overlooked in instituting tbe proceeding. Is not tbe case pending, and lawfully pending, and capable of being amended? True, a judgment of reversal cannot be entered until all tbe joint parties are before tbe court; but does that imply that tbe court can do nothing in tbe case? Can any substantial reason be given why section 5006, Revised Statutes, as well as section 5114, may not be resorted to for authority? We think not. That section reads as follows: “Any person may be made a defendant who has or claims an interest in tbe controversy adverse to tbe plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.” Smetters v. Rainey, supra, first proposition of the syllabus.

But the contention is interposed that no application to make Shuman a defendant was made in the circuit court until after the lapse of four months from the rendition of the judgment in the court of common pleas, and that thereby the bar of the statute was raised in favor of Shuman, which enured to the benefit of all those who are united with him in interest. At least that is the effect of the argument, inasmuch as there could be no judgment of reversal without the presence of Shuman as a defendant. We do not think that this position is tenable.

It was held in Robinson v. Orr, 16 Ohio St., 284, and in Buckingham v. Bank, 21 Ohio St., 131, that section 20 of the code of civil procedure, now section 4987, Revised Statutes, is applicable by analogy to petitions in error. See also the dissenting opinion of Johnson, C. J., in Moore v. Chittenden, 39 Ohio St., 563, for citation of other cases. That section reads as follows: “An action shall be deemed commenced, within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him, or on a co-defendant who is a joint contractor, or otherwise united in interest with him; and when service by publication is proper, the action sháll be deemed commenced at the date of the first publication, if the publication be regularly made.”

In Bradford v. Andrews, 20 Ohio St., 208, it was held that where a proceeding for the contest of a will is commenced within the statutory period of limitation, although only a part of the persons interested-in the contest are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired. While no reference is made in that case to the statute cited here the ruling was based on the principle that the parties were “united in interest. ’ ’ It was said in the opinion: ‘ ‘ The interest of the parties is joint and inseparable. * * # The case belongs to "that class of actions where the law is compelled either to hold the rights of all parties in interest to he saved, or all to be barred. ’ ’ And in a case where more than five years had elapsed between the decree and the issue of a writ of error, but one of the plaintiffs was at the time of pronouncing the decree an infant, it was held that where one of the parties, the case being inseparable, is within the saving clause of the statute of limitations, the case is saved as to all of the parties. Wilkins v. Philips, 3 Ohio, 49. So it was held that where a will was set aside at the instance of an heir who is within the saving clause of the statute of limitations, the exemption of the plaintiff from the statute of limitations avails for all the heirs, so as to set aside the whole will. Meese et al. v. Keefe et al., 10 Ohio, 362.

The Barber Asphalt Paving Co. v. Botsford, 50 Kan., 331, is exactly in point, because it construes a section of the code of civil procedure of that state which is identical with section 20 of our code, now section 4987, Revised Statutes.

We are therefore fully warranted in concluding that under the provisions of section 4987, Revised Statutes, interpreted in the light of the foregoing decisions, this proceeding in error was “commenced” as to Shuman when the appearance of the defendants who were “united in interest” with him, was accomplished. Indeed, the controversy here does not appear to have been much considered by the court in Smetters v. Rainey, for it is disposed of in the opinion in a single sentence, to-wit: “It would seem that the revising court should have acquired complete jurisdiction over the subject-matter — the' entire judgment — before the limitation attaches.” Our view is that such jurisdiction is acquired in the present case. Then, what is the result? The judgment below is a unit and cannot properly be reversed as to some of the parties and affirmed as to others. All must be in court before the final adjudication. Buckingham v. Bank, 21 Ohio St., 131. The court thus has jurisdiction of some of the parties and of the subject-matter, the statute having ’raised no bar. Another party is necessary to the determination of the controversy. Can it be that under such circumstances a reviewing court cannot allow an amendment of the petition in error “in furtherance of justice, ’ ’ adding and summoning a new and necessary party? We think that the power of the court to permit an amendment under such conditions is abundantly sufficient and its duty clear.

Smetters v. Rainey, 14 Ohio St., 287, has been, and still continues to be, the source of infinite confusion and embarrassment, both to the courts and to the bar. No case in this court has been brought to our notice, which expressly approves the-propositions decided there which are controverted here, except the brief per curiam in Burke v. Taylor, 45 Ohio St., 444. In our opinion in respect to the controverted propositions, it is inconsistent with the following cases hereinbefore cited: Wilkins v. Philips, 3 Ohio, 49; Meese et al. v. Keefe et al., 10 Ohio, 367; Robinson v. Orr, 16 Ohio St., 284; Bradford v. Andrews, 20 Ohio St., 208; Buckingham v. Bank, 21 Ohio St., 131; and Railway v. Bailey, 70 Ohio St., 88; and also with the other cases following: Secor v. Witter, 39 Ohio St., 218; Bank v. Green, 40 Ohio St., 431; and Wangerien v. Aspell, 47 Ohio St., 250. It has been applied in this court a few times without report; but we are in position to know that it has never, at least in recent years, gone without protest among those who concurred in such application of it. It is a rule of practice, and not a rule of property, which we are considering; and therefore, in the interest of consistency in practice, harmony of judgment and the furtherance of justice we overrule the second and third propositions of the syllabus in Smetters v. Rainey, 14 Ohio St., 287, and reverse the judgment of the circuit court herein, remanding the case for further proceedings.

Reversed.

Shauck, Crew and Summers, JJ., concur.

Spear, J.

(dissenting). The question is: did the circuit court err in overruling the motion to make John Shuman a- party, the statutory four months having passed, and in dismissing the proceeding?

Not being able to concur in the judgment of the majority it seems proper to offer some suggestions justifying the dissent. With due respect I am compelled to say that I regard the departure of the majority, and the judgment rendered, as against principle, against precedent, inconsistent, unnecessary, and unfortunate.

The case of Smetters v. Rainey, 14 Ohio St., 287, which is overruled by the judgment of the majority, announces in addition to the doctrine (not here doubted) that defendants in a joint judgment are necessary parties to a proceeding brought to reverse it, the further doctrine that if not made parties-within the statutory time given for commencing proceedings in error, the reviewing court acquires no jurisdiction to review, and that if such judgment debtor is brought in after the statutory time, he may plead the statutory bar, and that will oust the jurisdiction of the reviewing court. The decision in this case was the work of Judges Ranney, Scott, Brinkerhoff, Peck and Wilder, making a court not exceeded as to learning or ability by any on this bench which preceded or has followed. Moreover the cause was argued pro and con by such lawyers as Judge Thurman and Mr. Hocking H. Hunter, and the result was reached after careful consideration, the case having been carried over from a preceding term of the court. The. judgment rests upon the fact that the error case is a new proceeding, and upon a recognition of that rule which is distinctly held in a later case (Burke v. Taylor, 45 Ohio St., 444), that r “Statutes authorizing proceedings in error should be strictly pursued.” That rule is in every sense a wise and just one. The complaining party has had a trial on the merits of the controversy, and he now seeks the aid of the statute to obtain a review, and, if possible, a reversal of the judgment against him. It surely is no hardship to insist that he should strictly pursue the path pointed out. This principle is recognized and enforced by severe application of the rules obtaining in this court from time immemorial with respect to the filing of the record, the printing, the filing and printing of briefs, and in a score of other ways familiar to the profession but not necessary to specially mention. This statute (6723), as now in force, gives the complaining party four months from the rendition of the judgment within which to commence his error proceeding, a time amply sufficient, if improved, to accomplish that end. Something is claimed for this action that the failure to make John Shuman a party was “by mistake.” A careful inspection of the record fails to justify any such distinction if more is intended by it than that the failure was a plain, ordinary case of common negligence. No merit surely can attach to that condition in this court. Numberless cases are going to pieces just upon that ground all the time, and the shore is Strewn with the wrecks.

That the four months ’ limit is at least a statute of limitations is conceded. It would seem to follow from this that the party in whose favor a judgment is rendered has a vested right to be protected from further annoyance after the lapse of four months, if he has not been, within that time, brought into a reviewing court to contest anew. It is assumed, however, in the majority opinion that the sections of the statute which provide who may be joined as plaintiffs and defendants, and for amendments to .pleadings and the making of new parties (5005, -6, -7 and 5114), apply to error proceedings, and that section 4987 also applies, and taken with the other sections is controlling. Admitting that these sections have some application, what then? How do they control? Section 4987 provides that an action shall be deemed commenced as to each defendant at the date of the summons which is served on him or on a co-defendant who is united in interest with him. It is to be observed that the ordinary civil action and the error proceeding are in many respects unlike. The first is original; the second appellate. That is, it is not a right of action but is simply a right of appeal. The language of the statute (section 6723) regulating the time for the commencement of proceedings in error is imperative. “No proceeding to reverse, vacate, or modify a judgment or final order shall he commenced unless within four months after the rendition of the judgment or the making of the final order complained of.” Jurisdiction as to the person is acquired by bringing the party into court. “A proceeding in error to reverse, vacate, or modify a judgment or final order is not commenced within the meaning of section 523 of the civil code [now 6723] unless the petition in error is filed, and appearance of defendants in error effected by service of summons or otherwise.” Bowen v. Bowen, 36 Ohio St., 312. Therefore, if the complaining party does not in some way commence his action within four months so as to bring the party into court, he fails. The insistence is that he does so bring the party in by obtaining service within the statutory time on one who is united in interest, that is, one who was united in interest in the controversy in the court below. But I maintain with confidence that section 4987 in no way aids that contention. Let us get the exact language of it. It is: “deemed commenced * * * as to each defendant, at the date of the summons which is served on him, or on a co-defendant * * * united in interest with him.” “A defendant.” Now the statute is treating of an original proceeding. Who, then, is “a defendant?” Manifestly, and it seems to me without question, he is one who is named in the petition in error as a defendant. It would work a reversal of all our legal ideas on the subject to think otherwise. Clearly,, then, this section does not aid the position of the majority in this case, for in no conceivable sense was John Shuman such defendant. He was not named in the petition in error as such, and the subsequent proceedings show that the whole trouble of the plaintiffs in error arose out of that fact and out of the necessity, as their counsel saw it, of getting him in as such defendant by hook or by crook. It follows that the proceeding was not commenced within the meaning of the section quoted, as .to John Shuman, within the four months, and that he was in no wise affected by service on those who were named as defendants.

The limit of four months is described as at least a statute of limitations. I submit that it is much more than this. This limitation is a part of the right itself. Its observance is a condition to the assertion of that right, and hence a condition to the acquirement of jurisdiction by the court. The statute is a positive interdiction against the bringing ■of an error proceeding after the limit fixed, and. the holdings are abundant that a proceeding sought to be brought after the statutory limit will be ¡stricken from the docket for want of jurisdiction in the reviewing.court to entertain. But, taking either view of this matter, it is clear that, if we assume that ■sections 5005, 5006 and 5114 apply to error proceedings, and the construction sought to be given them in conjunction with section 4987 by the majority •opinion is to be entertained, then there is an apparent conflict between those sections and section 6723. In such view it becomes the duty of the court to endeavor to reconcile the sections. In meeting this ■duty I insist that full effect can be given sections 5005, 5006 and 5114 by confining their operation as to the making of new parties within the time limit. Should the plaintiff in error, through negligence or otherwise, omit from his petition the name of a party whom he desires to bring in, the court would have ample power, upon application within the time, to allow an amendment and direct service, and this would be entirely consistent with the provisions of section 6723, and would not deprive the person not brought in within the time of his statutory right of limitation. The contrary construction is squarely in the face of section 6723, and does deprive the person of his protection under that statute. It may be added that no prejudice should arise in considering a statute of limitations, for it is now universally regarded as a statute of peace.

It is stated at the outset of this dissent that the conclusion of the majority is against principle. I desire here to illustrate that it is against our fundamental ideas of law. Let us suppose a not unnatural situation and one which did actually occur. Three or more persons are makers of a joint promissory note. Before the note matures all but one go out of the state and so remain until within a short time of the expiration of the fifteen years, when they return to the state. Learning of this, and supposing them responsible, the holder of the note brings suit but fails to make the resident maker a party, no matter for what reason only so that such maker was in no way responsible for the omission. Learning soon thereafter, but subsequent to the expiration of the fifteen years, that he was mistaken as to the responsibility of the other makers, the holder amends, making the resident maker a party, and causes service to be made upon him. Would a court, in such a situation, refuse to entertain the resident maker’s plea of the statute of limitations simply because service had been made upon co-obligors, parties united in interest, within the statutory time? or, on the ground that such action was “in furtherance of justice” as indicated in section 5114? Surely it would be a bold or a very ignorant court who would so hold; and if such a holding were made and the case should reach this court I surmise it would stagger my brethren of the majority to affirm it. Treating the requirement as to time as a statute of limitation merely, I fail utterly to see any difference, in principle, between the supposed case and the case at bar.

It is insisted, however, that, whatever view should be taken of Shuman’s rights when in, the circuit court had the right, and the holding is that it was its duty, to allow an amendment to the petition by inserting the name of John Shuman, and then authorize service on him. But this ought not and could not avail. The court had no power to make any order except the very order it did make. It had acquired no jurisdiction of the cause. Besides, the act of bringing him in would only emphasize the condition that the plaintiff in error had failed to bring in the necessary parties in time. Shuman’s resistance to the motion showed fully that he intended to stand -on his rights with regard to the statutory limit, and that the allowance of the amendment as to him would be simply a vain thing. , In the language of Minshall, J., in The State v. McGregor, 44 Ohio St., 630: ‘£It is neither the policy nor the practice of courts to require the doing of a vain thing. ” Hence it was not error to overrule the motion, for had it been sustained and Shuman brought in, his plea upon any admissible theory of the ease, ought to have prevailed and the error proceeding ought to have been dismissed.

It is also hereinbefore stated that the conclusion of the majority is against precedent. On the other hand it is thought by the majority that previous decisions of this court justify, if they do not compel, the overruling of Smetters v. Rainey, and a reversal of the judgment herein. Several of those decisions are cited. Attention may be given to a few of them as samples. In Robinson v. Orr, 16 Ohio St., 284, it is held that a proceeding in error is not deemed commenced upon the mere filing of a petition in error in the proper court, and that section 20 of the code furnishes the rule which, by analogy, determines when proceedings in error are to 'be deemed commenced. Section 20 is now section 4987, Revised Statutes. I have undertaken to show heretofore the proper construction of that section. This decision in no way aids the contention of the majority, but points in the opposite direction. The opinion is by Scott, J., concurred in by Day, White, Welch and Brinkerhoff. It refers approvingly to Smetters v. Rainey, and two of the judges participated and concurred in that decision. Bradford v. Andrews, 20 Ohio St., 208, involved the action of the trial court in the making of parties in a will contest. The court held that although only a part of the persons interested in the contest were made parties thereto within the statutory period of limitation, the right of action is saved as to all who are ultimately made parties. Welch, J., in the opinion, speaking for himself, says he is aware that Smetters v. Rainey conflicts with the doctrine announced, and he regarded it as a departure from well established principles, and one that should be overruled when a proper case should be presented, but that it was not identical with the case at bar, and need not be passed upon. The judge regarded the plaintiff’s action as a right of action guaranteed by constitutional provision, while the right of limitation generally meets with more or less disfavor. I emphasize three points: 1. The judge was considering a constitutional right of action in a court of first instance; we are considering a right of appeal afforded only by statute, in a reviewing court. This distinction the learned judge fails to appreciate. In this connection he also falls into the apparent error of assuming that the statute of limitations was, as of old, a statute of presumptions, whereas, as we have seen, it is now a statute of repose. 2. No attempt was made by the court to overrule Smetters v. Rainey. 3. Two of the judges concurring (Brinkerhoff and Scott) united in the judgment in Smetters v. Rainey, and a third (Day) in Jones v. Marsh, 30 Ohio St., 20, quoted approvingly from Smetters v. Rainey. All of which shows that there was no understanding at that timé that the effect of the judgment was to overrule that case. Buckingham v. Bank, 21 Ohio St., 131, relied upon, also fails the plaintiff in error. The party sought to be brought in, the court held, was a party to the record at the commencement of the action. This opinion also is by Welsh, J. He takes much space to show that the party not served, although not named in the petition in error, was after all a party to the record, which would have been useless labor, if, in the judgment of the court, the service on one united in interest was sufficient to bring in the absent party irrespective of the fact of his being or not being a party to the record. Besides no reference to Smetters v. Rainey is made in the opinion, which is also concurred in by Judges Scott and Day. Other eases cited speak in the opinion disparagingly of Smetters v. Rainey, distinguish it, and limit it to the case made. This is all well described by the eminent counsel for defendant in error when he truthfully and graphically says that the case has been, on some points growled at in obiter dicta, as to its application to particular eases, but has never been overruled. Railway Co. v. Bailey, 70 Ohio St., 88, cited in the majority opinion, has no possible application to the point in contest here.

The understanding of the bar as to the status of the case is well put in the recent admirable Citation Digest, by Mr. Gilbert H. Stewart, of the Columbus bar, as follows: “Smetters v. Rainey, 14 O. S., 287-291. All defendants in joint judgment necessary parties to proceeding in error. Approved, Robinson v. Orr, 16 O. S., 228; Hammond v. Hammond, 21 O. S., 627; Jones v. Marsh, 30 O. S., 23. Distinguished, King v. Bell, 36 O. S., 468. All joint judgment debtors are necessary parties to a petition in error. Followed, Kries v. Drott, 67 O. S., 516; Sohn v. Loan Co., 67 O. S., 516; Abair v. Bant, 3 C. C., 290; Burk v. Taylor, 45 O. S., 444. Cited, Lowenstein v. Rheinstrom, 8 N. P., 236. Necessary parties in error proceedings must be brought in within statutory period. Q., Bradford v. Andrews, 20 O. S., 220; 5 Am. Rep., 647. Approved, Jones v. Marsh, 30 O. S., 23. Distinguished, Secor v. Witter 39 O. S., 227, 229; Bever v. Beardmore, 40 O. S., 77. Q., Bank v. Green, 40 O. S., 438. Followed, Burke v. Taylor, 45 O. S., 444. Distinguished, Wangerien v. Aspell, 47 O. S., 255. Followed, Abair v. Bank, 3 C. C., 290-304; 2 Cir. D., 165; Werk v. Christie, 9 C. C., 444; 6 Cir. D., 255; Page v. McConville, 10 C. C., 321; 6 Cir.D., 631; Lumber Co. v. Marcy, 14 C. C. 613; 7 Cir. D., 444. Right to several judgment in joint action only affects end of action. Approved, Hempy v. Ransom, 33 O. S., 319. A joint defendant cannot alone prosecute error. Cited, Kries v. Drott, 21 C. C., 790. Questions of practice are determined by code, when. Cited, Ry. Co. v. Bailey, 70 O. S., 90.

“Where Smetters v. Rainey is cited in foreign cases: 18 Fla., 158; 40 Fla., 152; 74 Am. St. Rep., 133; 20 Kan., 495; 21 Neb., 473; 28 Neb., 791; 29 Neb., 617, 619; 10 W. Va., 497; 5 Wyo., 421. ’ ’

It is my belief that tbe principal case has been followed in more cases than any other since I have been a member of the court. It is distinctly approved and followed in Burke v. Taylor, supra, a case presenting the precise question at issue here. But more to be emphasized is the report of- two cases in 67 Ohio St., 516. I quote: “Kries v. Drott et al. Error to the circuit court of Hamilton county. Judgment affirmed on authority of Smetters v. Rainey, 14 Ohio St., 287. Burlcet, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.” “Sohn v. Bldg. S Loan Co., same volume and page. Error to the circuit court of Hamilton county. Judgment affirmed on authority of Smetters v. Rainey, 14 Ohio St., 287. Burlcet, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.” May I add (using though reversing, the simile used by the present Chief Justice in State v. Yates, 66 Ohio St., 554), I would fain appeal from Phillip in his present condition to what I conceive to have been a more serious, not to say sober, condition at the time the above entitled cases were disposed of and the conclusions given to the public.

It must be apparent from what has preceded that the decision of the majority is inconsistent. It is also apparent that, in view of the previous holdings of the court, it is unnecessary, as the case at bar might well have been disposed of on the doctrine of stare decisis. To my mind, also, it seems very unfortunate. True, the doctrine of the principal case does not involve a rule of property, but it does involve an important question of practice. Notwithstanding the growling to which reference has been made, the ease in the 45th State, supra, and the two cases in 67th State, supra, taken in connection with many unreported eases involving the same question, have given the bar and litigants to believe that Smetters v. Rainey was to stand. Eights have been determined upon it. No change in the policy of the state has occurred; no special inconvenience has resulted.from adherence to the doctrine of that case, and the effect of this decision is to unsettle that which before was understood to be definitely settled, and, it seems to me, without sufficient cause. How can a court expect others to have respect for its decisions when it so lightly overturns them itself? How can the bar or the public, in the light of this departure, rely with any certainty on the court’s declarations of law however repeatedly declared'? With what assurance can lawyers advise their clients?

For the foregoing and other cognate reasons, I think the judgment of the circuit court should be affirmed.

Prigs, J., concurs in this dissenting opinion.  