
    David Johnson, Executor, etc., et al. v. Benjamin H. Johnson et al.
    The provisions of section 534 of the code of civil procedure, as extended hy section 542 to probate courts, do not confer power upon a probata court, in proceedings instituted under section 536, to vacate or modify its own orders previously made in the settlement of the accounts of executors and administrators.
    Reserved in the District Court of Highland county.
    In 1854 David Johnson was appointed executor of the last will of Benjamin H. Johnson, Sr. On the 22nd of December, 1862, he filed in the Probate Court of Highland county his third account, which was continued for exceptions until the 30th of January, 1863; on this day there being no -exceptions to the account, it was finally heard and approved. In the account when filed there was inserted a claim for services in administering the estate, but the amount was left blank, to be filled as the probate judge might order.
    On the settlement of the account the probate judge, on the statement of the executor when not under oath, allowed him as extra compensation for extraordinary services the •sum of four thousand dollars which was passed to his credit in the account as approved.
    On the 27th of January, 1865, a petition was filed in the Probate Court of Highland county, praying “that the judgment of said Probate Court allowing said sum of four thousand dollars may be vacated, on the ground that the allowance and judgment had been obtained by the false and. fraudulent representations of the executor. The residuary legatees of the testator alone were interested, and all of these who would consent were made plaintiffs in the petition, and those not consenting, including the executor, were made defendants and brought in by service of process and publication as to non-residents.
    The executor demurred to the petition on the following grounds: 1. That the court had no jurisdiction of the case.-2. That the plaintiffs have no legal capacity to sue. 3. That the petition does not state facts sufficient to constitute a .cause of action. This demurrer was overruled and the executor excepted. Issues were made by answer and reply, and on final hearing the court found the issues for the-plaintiffs, and entered an order setting aside, vacating and annulling the former order of the court, making the allowance of four thousand dollars to the executor for extra compensation, and purging his accounts as to this sum.
    The executor took the case bn error to the Court of Common Pleas, one of the errors assigned being: That the-Probate Court erred in overruling the demurrer to the-petition.
    The Court of Common Pleas affirmed the order and' judgment of the Probate Court.
    The case was taken to the District Court on error by the executor, the error assigned being that the Court of Common Pleas erred in affirming the Probate Court.
    In the District Court the case was reserved for decision, here.
    J. IT. Thompson, for plaintiff in error, claimed:
    That the settlement of David Johnson’s account and the-allowance made to him of said $4,000 was not such a proceeding as was contemplated by the practice act of March 11, 1853 (1 S. & C. 1114, 1115, sec. 534, 4th and 5th paragraphs, secs. 536, 538, 541 and 542,) because such proceedings are ex parte, or proceedings in rem, without any adverse party, and the plaintiffs were not entitled to any such remedy as is contemplated by said act. 19 Ohio, 359; 16-Ohio St. 464, 465; 3 Ohio St. 494; 12 Ohio St. 172. '
    
      J. J. McDowell, also for plaintiff in error:
    The Probate Court had no jurisdiction in the case.
    Subdivision 4 of section 532 seems evidently designed for and confined to cases in which there are adversary parties,, plaintiffs and defendants, “ for fraud practiced by the suecessful party.” Can an executor or administrator of an estate, whose account, previously filed for settlement, is passed upon or allowed, be termed in any sense a successful party? What issue has been made, and with whom ? Who is the adverse party ?
    There is in such case no suit or action, and no parties, either plaintiffs or defendants, no subpena or summons, as in actions or suits at law. Bank of Muskingum v. Carpenter’s Adm’r, 7 Ohio 21, 71, pt. 1.
    The petition in error can not be sustained under subdivision 5 of section 534, for that applies to erroneous proceedings against an infant or married woman, where the condition of such defendants does not appear upon the record. Is the filing and settlement of an account, however erroneous, a proceeding against any one ? Are there defendants, in any legal sense, to such filing and settlement ? It would seem not.
    But what are the orders of the Probate Coui’t, which may he vacated under section 534 of the code ? Eor as this is not a judgment, the right to vacate it, if it exists at all, must arise from the fact that it is. such an order as the court may review in this manxxex', or such an order as is contemplated in section 542 of the code, which extends this jurisdiction to the Probate Court. It must be a final order, which in section 512 of same title, Swan’s Statute, page 689, is defined to be “ an order affecting a substantial right in an action, whexx such order, in effect, determines the-action, and prevents a judgment, and an order made in a special proceeding, or upon a summary application, in an action after .judgment, is a final ordex*, which may be vacated, modified or x’eversed, in this title, to wit: title 16.
    I submit that the first clause of the foregoing definition does not embrace the present case, nor the order of settlement xnade by the probate judge was not an order affecting a substantial right in an action, which in effect determined the action and prevented a judgment. Neither, I apprehend, is the case embraced within the subsequent clause of the definition, which says: “An order affecting a substantial right, made in a special proceeding, or upon a summary application, in an action after judgment.”
    Section 534, under which this petition is filed, is, in my view, designed to enable a party injured by the judgment or order of the court, who has no other remedy or means whereby the injury may be repaired, to bring it before the same court ir which the injury was inflicted, and to give to it a more extended operation than this would work great injustice.
    In the present ease, parties interested in the settlement of estates have abundant and most effectual means of protecting their own interests, however remote, against all errors in the account of executors and administrators.
    
      Harrison ‡ Olds, for defendants in error:
    Section 542 of the code provides: “ The provisions of this title subsequent to section 533 shall apply to the Supreme Court and Probate Court so far as the same may be applicable to the judgments or final orders of such courts.”
    Counsel for plaintiffs in error assume that this provision applies only to judgments and final orders in adversary proceedings inter partes, and not to proceedings in rem or ex parte; and that proceedings for the settlement of administration accounts are ex parte and in rem, and not adversary. We think both assumptions are erroneous.
    The statute itself prescribes no such limitation. The language is broad, and will include all judgments and final orders of such courts, without regard to the nature of the action or proceeding. Nor do we perceive any reason for such a narrow construction. In all actions or proceedings, even in actions ex parte, there is at least one party. If in a proceeding ex parte or in rem a final order or judgment should be procured by fraud practiced by the party successful in obtaining the judgment or order, or by erroneous proceedings, where infants are adversely interested and injuriously affected, but their condition or the error does not appear in the record, why should not the court have power to vacate the judgment or order ? Is there anything peculiar to ex parte proceedings or proceedings in rem which re■quires that the court should be disabled from arresting imposition, fraud, and injustice therein? We think not.
    Proceedings ex parte and in rem are various. Glancy v. Glancy, 17 Ohio St. 134; Powers v. Peed, 19 Ohio St. 189; lb. 348; Schooner Marinda v. Dowlin, 4 Ohio St. 500; Ex parte James Collier, 6 Ohio St. 55.
    
      We contend that proceedings to settle the accounts of an executor, although they may be in rem, are not ex parte, but that such proceedings are adversary. Every order or decision in such proceeding is in favor of and against some party. The parties are adverse. As either party may appeal from such order or decision, so either may prosecute a petition in error thereto.
    The settlement of the account of an executor or administrator is final and conclusive as to all matters included in the account, as against all persons intrusted having actual notice thereof. McAfee v. Phillips, 25 Ohio St. 375. The order in this case allowing $4,000 as compensation for extraordinary services was final and conclusive upon those having notice of the settlement, until reversed. Powers v. Peid, 19 Ohio St. 206 ; McAfee v. Phillips, 25 Ohio St. 374; Negley v. Gard, 20 Ohio, 316; Ramsey v. McGregor, 1 Sup. Ot. 327.
   Gilmore, J.

The errors assigned upon the record raise a number of questions, the first of which is this: Did the Probate Court err in overruling the demurrer to the original petition, on the ground that it had not jurisdiction- of the action ?

The petition was filed and jurisdiction invoked under the 534th, 536th, and 542nd sections of the code of civil procedure.

The 534th section provides that “ a Court of Common Pleas or District Court shall have power to vacate or modify its own judgments or orders after the term at which •such judgment or order was made. ... 4. Eor fraud practiced by the successful party in obtaining the judgment or order. 5. Eor erroneous proceedings against an infant* ■married woman, or person of unsound mind, where the-condition of such defendant does not appear in the record, nór the error in the proceedings, etc.” The 636th section provides that “ the proceedings to vacate or modify the judgment or order on the grounds mentioned in subdivisions four, five ... of section 534, shall be by petition verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant.”

The 542d section provides that the provisions of the above sections shall apply to the Supreme Court and Probate Court, so far as the same may be applicable to the judgments or final orders of such courts.

The grounds set out in the petition upon which the vacation of the allowance to the executor was asked, were those-contained in the fourth and fifth subdivisions of section 534 above set out.

Does the case thus made by the original petition come within the operation of the provisions of the sections of the code above mentioned ?

We'think not. It is evident that the 534th section has reference to judgments or orders in civil actions or proceedings of an adversary character, between parties plaintiff and defendant, and in which issuable pleadings are contemplated or required. The language of the entire section, except the ninth subdivision, which relates to “judgments upon warrants of attorney,” clearly indicates this: The ground for vacating provided by the fourth subdivision is “ for fraud practiced by the successful party in obtaining the judgment or order.”

This inferentially includes an unsuccessful as well -as a successful party, plaintiff or defendant, whose interest in the subject-matter of the action or proceeding it is to be presumed must have been adverse. The same inference and' presumption must apply to cases covered by the fifth subdivision of the section, in which the grounds for vacating are as follows: “ For erroneous proceedings against an infant, married woman, or person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.”

The law makes provisions for the protection of persons laboring under disabilities in all adversary judicial proceedings against them ; but the protection can not be given unless the fact is made to appear in some of the modes prescribed. The mode of making the fact appear depends upon the nature of the action or proceeding, and the provisions of the law in relation thereto. The question before us is: What actions or proceedings are referred to in the subdivision just quoted? Clearly not such as are ex parte, as in habeas corpus, nor to proceedings in which there are no parties in any proper sense, as in the settlement of the accounts of an executor. The subdivision, by its terms, relates only to actions or proceedings against defendants laboring under disability in which a party plaintiff adversely interested is presupposed; and in which a record is required to be made, wherein the disability of the defendants should he made to appear. In such adversary actions or proceedings, if the disability existed and did not appear in the record, any judgment or order made affecting the interests of such defendants, would, as against them, he erroneous, and, under this subdivision, would be vacated as a matter of course,on the facts being made to appear.

We think, therefore, that 'the provisions of both these subdivisions apply only to judgments and orders in adversary actions or proceedings inter paries, and not to the settlement of accounts of an executor in the Probate Court, in which, within the meaning of these subdivisions, there are no parties to either succeed or fail, and no record is required to he kept in which the disability of interested defendants should be made to appear.

It follows that the sections of the code under which it assumed to act are inapplicable, and conferred no power upon the Probate Court to vacate its former allowance to the executor, and in entertaining the proceedings for this purpose it was acting without jurisdiction. Hence the Probate Court erred in overruling the demurrer that directly called its jurisdiction in question. This renders a notice of the ■other errors assigned unnecessary.

It may, however, be properly added, that the act “ to provide for the settlement of the estates of deceased persons ” makes ample provisions for the correction of the accounts of executors and administrators, and the modes of correction and the remedies therein prescribed must be followed within the time and in the manner pointed out.

The judgment of the Court of Common Pleas affirming the Probate Court, and the judgment of the Probate Court are reversed, and the cause is remanded for proper entries.

Judgments reversed.

Welch, O. J., White, Rex, and McIlvaine, JJ'., concurred.  