
    The Cleveland, Columbus and Cincinnati Railroad Company v. John Mara.
    1. Where counsel for defendant in error, in a case reserved in the District Court, appeared in the Supreme Court, and without objection to its jurisdiction, assented to a sotting of the case for oral argument, and the same was afterward partially argued on its merits by both sides: Held, that these acts constituted a general appearance in the case, and a submission to the jurisdiction of the court.
    2. Such appearance in the Supreme Court estops the defendant from denying his appearance in the District Court; and, therefore, where the case is reserved in the District Court within the three years limited by statute for filing petitions in error, it is not barred by the statute, although the appearance in the Supreme Court took place after the expiration of the three years.
    8. In an action against a railroad company for injuries sustained, by a party by falling or being precipitated into a ditch, when in the act of landing from a oar, it is not competent for the plaintiff to prove what the party said immediately afterward, and while being helped out of the ditch, as> to the cause of the accident, it being no part of the res gesta, but a mere account of a past transaction.
    Error to the Common Pleas of Eranklin county, reserved in the District Court.
    This was an action by Mara against the plaintiff in error, for injuries received by Mara’s wife while in the act of leaving the company’s car, on which she had been a passenger. The evidence showed that Mrs. Mara’s injuries were occasioned by her falling, or being precipitated, from the steps or platform of the car into the cattle-guard, and there was evidence tending to show that this was caused by a “jerk,” or sudden start of the train, carelessly and wrongfully permitted by the officers of the company. Mr. Mara, the husband, in his testimony described the occurrence as follows:
    “ My wife immediately undertook to get out, and while getting out she fell and struck the fence leading to the cattle-guard. There was a sudden jerk or jar given to the train at the time and that threw her out. I was within a step or so of her at the time. She was on the platform of the ear or first step of the platform, when the train, in the act of getting down, jerked. . . . The train had stopped, so that I did not see it moving. The train then went on. . . . I stepped right to her. She was in the cattle-guard under the west rail. . . . Soon after Nash came and the conductor, I think it was Barkoff; they both had railroad lanterns. I supposed it was the conductor. Nash and I helped her out.”
    The counsel for plaintiff then asked the following question : “ While you and Nash were in the act of getting your wife out of the cattle-guard, immediately after the accident, did Mr. Nash ask her how she came to be there; did she make answer to it, and if so, what was it?” The witness-replied: “ Nash asked her how she came to be thrown in there, and she told him she was jerked in while in the act of getting off' the ears.”
    ‘ To this question and answer the counsel for the railroad company objected, but their objection was overruled, and they took exception.
    A verdict and judgment having been rendered against the company, it prosecuted a petition in error in the-District Court, assigning as error, among other things which need not be here specified, the ruling of the court in regard to said testimony.
    The petition in error was filed in the District Court, and the cause was there reserved for decision here, before the expiration of three years after the rendition of the judgment, but was not reached upon the docket of this court, nor any action had therein, until long after said term of three years had elapsed. When the case was reached the counsel for the defendant in error appeared in this court, and on their motion obtained from the court an order upon the counsel of the plaintiff in error, to return the papers in the cause, which it seems were in their possession. They also, on motion, obtained from the court an order that this cause-should be heard at the same time with another cause pending on the docket, on the ground that the causes involved similar questions of error. When the cause was reached for hearing, it was set for oral argument with the assent of defendant’s counsel, and after the opening argument of counsel for the plaintiff had been made, and one of the counsel for defendant had concluded his argument, it was for the first time made known by the counsel for defendant that they should claim that the court had no jurisdiction of the case, on the ground that there was no service of summons upon the defendants or their attorneys in the-District Court, and no evidence of their appearance in that court or waiver of process. Subsequently, and after the argument of the case had been concluded, an answer was filed, formally setting up these grounds of defense, and alleging that this court had no jurisdiction of the cause, as-more than three years, the statutory period of limitation, had elapsed since the rendition of the judgment. Issue was taken on this answer, and on the hearing of this issue -it appeared that there was no record or other sufficient evidence that any summons had been issued in the cause, or that its issuance had been waived by the defendant or his attorneys, or that the defendant or his attorneys had ever in fact appeared in said cause in the District Court. The counsel for defendants thereupon insisted that the cause-should be dismissed, on the ground that no jurisdiction.of the persons of the defendants had been obtained by this court; or, if such jurisdiction had been obtained, then on the ground that it had not been obtained until after the-lapse of three years from the date of the judgment.
    
      Hstep ‡ Burke, with whom were Carper $ Vandieman and-Charles Collins, for plaintiff in error:
    I. An appearance and trial is conclusive evidence of the service of process. It is a conclusive admission by the party that he is properly in court, that the case has regularly been docketed, and that all the preliminary steps required to bring the ease to a hearing have been properly taken. Hammond v. Hammond, 21 Ohio St. 620.
    
      There is no essential difference between service in the ■commencement of an action and service upon petition in -error, except that in a petition in error the service may bo made upon the attorney of record in the court below, and either the party or his attorney, upon proceedings in error, may waive the issuing and service of process either in writing or by appearing in court and proceeding to a hearing •of the action.
    The fact that the appearance in open court was subsequent to the time when a summons might properly have been issued and served, is entitled to no weight whatever. Hammond v. Hammond, 21 Ohio St. 620.
    After such appearance, it is too late for a party to come in and plead to the jurisdiction of the court, and say that the court before which he has appeared, and to which he is arguing the point involved in the case, has no jurisdiction to hear and dispose of the question which he himself has been instrumental in submitting to the court. Fee v. The Big Band Iron Go., 13 Ohio St. 563; Evans v. lies, 7 lb. 233; 11 lb. 503; 2 Abbott N. S. Ct. Pr. 48; 4 Cranch, 421; 1 McLean, 174; 18 Howard, 253 ; 6 Kansas, 392 ; 5 Allen, 140; 40 Vt. 575; 3 Nebraska, 215; 43 Ind. 157; 45 Cal. 257; 34 Conn. 184; 2 Starkie on Ev., pt. 90 ; 28 Md. 242; 2 Cranch, 159; 12 Pet. 729 ; 25 111.107; 26 lb. 366 ; 52 Mo. 55-; 14 Mich. 314; 3 Mason, 159; 36 Penn. St. 29; 1 111. 372 ; 28 lb. 79.
    To the objection that the appearance and trial occurred after the right to perfect service had expired, it is a complete answer to say: 1. That the party, by appearing, waives the issue and service of process. By such waiver he puts himself in the same position in the court as if the process had been regularly and properly issued and served. 2. The statute of limitations must be pleaded in error as well as in other cases. 16 Ohio St. 284.
    II. The court erred in the admission of the declarations of Mrs. Mara. Enos v. Tuttle, 3 Conn. 250; 1 Cowden & Hill’s Notes to Phillips’ Ev. 207, note 160; 21 Ohio St. -641; Weimore v. Hill, 1 lb. 28; 2 lb. 167; 6 lb. 467; 10 lb. 531; 15 lb. 15; 1 Greenl. (12 ed.), see. 110; lb. 123, note 2; 9 N. H. 271; 6 Md. 319; 4 Grey, 581; 45 N. Y. 574; 47 lb. 83.
    
      Reid Powell and L. J. Critehfield, for defendant in error.
   "Welch, J.

We think the defendant is too late with his objection to our jurisdiction. His submission of the case upon the merits, and partial argument thereon, are acts in acknowledgment of this court’s jurisdiction, and amount to an appearance in the cause. In a case in error, where no plea or answer is required, there is no good reason why an argument of the case upon its merits should not be held a general appearance, equally as a plea or answer would be held to be such appearance in an action where a plea or answer is required. Without deciding, therefore, whether the two preliminary motions made by defendant—namely, for return of the papers, and for hearing the cause with •another case—were sufficient acts in acknowledgment of the court’s jurisdiction, amounting to an appearance, it is enough to say that his assent to the setting of the case for argument, and the partial argument thereof, were sufficient for that purpose.

But defendant’s appearance in this court was after the expiration of three years from the date of the judgment, and it is claimed, therefore, that the proceeding is barred by the statutory limitation. We think this claim is well answered by saying that the defendant is estopped, by his appearance here, from denying his appearance in the District Court. The latter court had jurisdiction of the subject-matter, and its reservation of the ease for decision here was made wTithin the three years. Unless the District Court had jurisdiction of the defendant’s person, it had no power to reserve the case, and this court has no jurisdiction over it. Any acknowledgment of our jurisdiction over the case is,therefore, in effect, and necessarily, an acknowledgment that the defendant had effected his appearance in the District Court at the time the reservation was made. He has in effect admitted his appearance in that court, by appearing here and invoking the action of the court upon the. merits of the case, and we only follow the current of authorities in holding, as we do, that he is bound by that admission, and estopped from taking it back. Any other rule of practice would enable parties to trifle with the court, by first requiring it to hear the case upon its merits., and then, when an adverse decision on the merits is reached, turning round and denying its jurisdiction, thus rendering all its labors abortive and useless.

As to the case upon its merits, we only deem it necessary to say that one of the assignments of .error is, in our judgment, well taken. We think the court erred in admitting proof of what was said by Mrs. Mara as to the cause of •her fall or precipitation into the ditch of the cattle-guard. Although occurring immediately after the accident, it was no part of the res gesta, but a narration of a past transaction, and therefore mere hearsay evidence. For this error the judgment must be reversed, and the cause remanded for a new trial.

Judgment accordingly.

McIlvaine, C. J., White and Rex, JJ., concurred.

Gtlmore, J., dissented..  