
    James Carter v. Simeon Jennings.
    1. The right to revive an action, under title 13, chapter 1, of the code, is not dependent on the discretion of the court, or of the judge making the qrder, but under the conditions and within the time therein limited is a matter of right.
    2. The chapter of the code above referred to provides a summary remedy for reviving an action, but the remedy thus provided is not exclusive. The court has power, under section 39 of the code, "in the exercise of a sound discretion, to allow the action to be prosecuted by or against the representatives or successor in interest of a deceased party. For this purpose, supplemental pleadings may be allowed and process served as in the commencement of an action.
    3. The court, in the exercise of this discretion, is governed by the equitable principle which requires reasonable diligence and good faith on the part of those invoking its action; and where the time has elapsed within which an action can be revived by a conditional order, as provided for in title 13, chapter 1, of the code, the application for leave to continue the suit by supplemental pleading, may be granted or refused, according to the nature and circumstances of the case.
    4. "Where, pending a supplemental petition to revive an action against the representatives of a defendant, the plaintiff dies, the action may be revived in favor of his representatives by conditional order.
    Appeal. Reserved in the District Court of Columbiana county.
    The following statement is sufficient for an understanding of the decision in this case.
    The action was brought by Carter against Jennings, for the cancellation of a note and mortgage on the ground that they had been paid. The case came into the District Court by appeal, and was there referred. The referee found the' facts in favor of the plaintifij and that he was entitled to the relief prayed for.
    On the 30th of October, 1865, and subsequent to the filing of the report of the referee, Jennings died in Hancock county, West Virginia, the place of his domicile.
    Letters of administration were granted in Hancock county, on his estate, on the 21st of November, 1865, and in Mahoning county, in this state, on the 21st of December following.
    At the April term of the District Court, 1867, application was made by the plaintiff for an order to revive the action against the administrators of Jennings. This application was continued. At the April term, 1868, the order was granted; and leave was also given the plaintiff to file a supplemental petition to revive the action against the administrators of Jennings. The petition was filed and summons duly served on the administrators.
    In answer to the supplemental petition the administrators set up:
    1. The time of Jennings’ death, as before stated, the dates of their appointments as his administrators in West Virginia, and in Mahoning county in this state.
    “ 2. That James Carter and his attorney had knowledge of the decease of Jennings and the appointment of his administratOrs as early as January, 1866, and that one of said administrators resided in Columbiana, and two in Mahoning county, Ohio.
    “ 8. That there was no motion made for a conditional order of revivor, within one year from the time the suit could have been first revived.
    “ 4. That there was no revivor of the same, either absolute or conditional, within one year after the appointment of said administrators, and that said administrators do not consent to revive the action.”
    At the April term, 1869, of the District Court, the cause came on for hearing, and the court found the facts before stated; also, that neither Carter nor his attorney had any knowledge of the appointment of the administrators in Mahoning county until the 11th or 12th of April, 1867. The court being of opinion that the question as to whether the action ought to be revived against the administrators of Jennings, was important and difficult, ordered the case to be reserved for decision by this court.
    Since the case came into this court, the plaintiff has died. On application of James M. Carter, his administrator, a conditional order has been granted by this court to revive the action in his name. This order was made and served within a year after the plaintiff's death.
    The administrators of Jennings object to the revivor in the name of the administrator- of the plaintiff, on the ground that no authority is given by law to revive a special proceeding, such as was pending at the death of the plaintiff.
    
      Simon Wisden, for plaintiff:
    The plaintiff is not bound, by the law1 of constructive notice, to know the time when letters of administration were granted on the estate of Jennings, in Hancock county, West Virginia, and he could move to revive the action at any time within one year after he had actual notice, and could serve the order on such administrators. Code, tit. 13, chap. 1.
    
      Ancillary letters of administration were not legally'issued by the Probate Court of Mahoning county, Ohio, and the plaintiff is not bound to notice the appointment .of administrators by that court.
    If the plaintiff' shall be held bound to notice such appointment, he is only bound from the time of actual notice, and could apply for the order to revive at any time within one year after he had such actual notice.
    The plaintiff was not bound to move for the order of re. vivor, until the first term of the court held after notice to him of the appointment of administrators, though more than a year had elapsed after the appointment, and notice thereof to the defendant, before such term of the court was held.
    If the plaintiff' is precluded from reviving by motion, under the code, he has a right to a decree of 'revivor, on his supplemental petition.
    The suit is an equitable one. The rules of equity jurisdiction have not been changed or abrogated by the code. It has simply changed the rules of practice.
    The chancellor still retains jurisdiction to relieve against a judgment, even where there is a complete defense at law, when the defense has not been made by reason of accident fraud, or mistake. Jones v. Woodhull, 1 Root, 292; Doty v. Whittlesey, Ib. 310; Gay v. Adams, Ib. 105: Degraffenreid v. Donald, 2 H. & M. 10.
    
      Thomas Kennett, for defendant:
    The revivor can only be made against the consent of the defendants, within one year after the death of Jennings (Code, sec. 410), and the year begins to run from that time, and the year is given in order to afford sufficient time to compel letters to be taken out on the estate, and do the other things necessary to precede the revivor.
    If the year did not commence to run from the death of Jennings, it did begin at the date of the appointment of his administrators.
    If it did not commence at, or previous to the appointment of Jennings’ administrators, it did commence as soon after as any person having the legal right to have the action revived, could have obtained the conditional order of revivor, which was not later than the end of January, 1866.
    This is uot a case in which a want of information will avail anything under any circumstances; but if it is a case of that kind, it would only be when the party was shown to have made reasonable efforts to obtain the necessary information, and then had failed to obtain it in time, that he could avail himself of the want of information, and not a case like this, where . Carter shows that in June., 1866, months before the time expired, he had all necessary information.
   White, J.

The code is modeled largely after the remedial system of courts of equity. This is especially so in its provisions respecting the parties and pleadings in an action.

At common law, on the death of a party, the action, as respects his interest, absolutely abated; and although the cause of action survived, it could only be made available to his representative by the commencement of a new action. The inconvenience resulting from this defect in the common law system of remedies, was obviated by providing, by statute, a summary mode for making the representative of the deceased party, where the cause of action survived, a party to the action.

In equity, a suit became defective during its pendency in various ways, and, among others, by the death of a party. But where the cause of action survived, it did not abate so that on proper application by the representative, it could not continue to be prosecuted for his benefit. The means, of supplying the defects of a suit, where it abated by the death of a party, and of obtaining the benefit of it, were, by bill of revivor, by bill of revivor and supplement, and by original bill in the nature of a bill of revivor. Mitf. Eq. PI. *57, *61.

These destinations were abolished by the code, and the only forms of pleading now allowed are such as the code prescribes.

The question in the case is whether the rights that were formerly obtained in one of these modes, can not now be asserted unless the action be revived in the mode prescribed, and within the time limited in title 13, chapter 1, of the code.

That chapter of the code provides for reviving the action, where the right of action survives, by a conditional order of the court, if made in term, or by a judge, if in vacation. The order is to be served in the mode prescribed, and if sufficient cause be not shown against the revivor, the action stands revived. The order can not be made except by consent, unless within one year from the time it could have been first made. When, under the provisions contained in the chapter, an action stands revived, the trial is not to be postponed by reason of the revivor, if the action would have stood for trial in case no revivor had become necessary.

Title 3 of the code treats of the general rules in regard to parties, and of the authority of the court to allow a change of parties, and to require others to be brought in, when necessary toa determination of the controversy. Under this title, section 39 provides, among other things, that an action does not abate by the death of a party during its pendency, if the cause of action survive or continue. “ That in case of the death ... of a party, the court may allow the action to continue by or against his representative or successor in interest.”

Now, if the only mode of continuing an action by or against the representatives of a party dying during its pend-ency, is as provided in chapter 1, title 13, the above provision in section 39 is useless and can have no practical effect. The chapter on the subject of reviving by conditional order would have the same effect without the provision as with it. On the other hand, if the chapter referred to were stricken from the code, the court would have full- power, under section 39, in the exercise of a legal discretion, to allow the action to be continued by or against the representative or successor in interest of tbe deceased party.

The limiting the right of continuing an action against the representative of a party to the year within which a conditional order may ber made, would evidently in many cases work great inconvenience, and sometimes defeat the end of justice. In equity cases,' the parties are often very numerous, many of them living remote from the place of litigation. If the failure to revive an action against the representatives of a necessary party within the time allowed for a conditional order, necessarily defeats the action, the consequences may be very serious to litigants chargeable with no laches. That a new suit may be brought is true; but, in the meantime, the cause of action may have become barred. Besides, whatever expense may have been incurred or progress made in the former suit, in the way of taking testimony or otherwise, goes for nothing. If a new action has not become barred, the representatives of the deceased party would not be benefited, while the opposite party would be unnecessarily embarrassed. The tendency of the rule would be to multiply litigation and prolong the final determination of the controversy.

No such absolute limitation upon the right of reviving an. action was found in the former practice. And before we are authorized to say it was intended to be introduced by the code, we think the intention ought to be more clearly evinced.

While we have not found the question free from difficulty, we have arrived at the conclusion that a fair construction of thb code warrants us in laying down the following propositions as applicable’to the ease :

The right to revive an action, under title 13, chapter 1, of the code, is not dependent on the discretion of the court or of the judge making the order, but, under the conditions and within the time therein limited, is a matter of right.

The chapter of the code above referred to, provides a summary remedy for reviving an action, but the remedy thus provided is not exclusive. The court has power, under section 39 of the code, in the exercise of a sound discretion, to allow the action to be prosecuted by or against the representatives or successor in interest of a deceased party. For this purpose, supplemental pleadings may be allowed and process served as in the commencement of an action.

The court, in the exercise of this discretion, is governed by the equitable principle which requires reasonable diligence and good faith on the part of those invoking its action; and where the time has elapsed within which an action can be revived by a conditional order, as provided for in title 13, chapter 1, of the code, the application for leave to continue the suit by supplemental pleading may be granted or refused, according to the nature and circumstances of the case.

In regard to the application of these principles, it is only necessary now to say that the present ease is one, in its nature and circumstances, clearly justifying the grantingof leave to revive and continue the action against the administrators of Jennings.

It is also contended, on behalf of the administrators of Jennings, that as Carter died pending this proceeding to revive the action against them, the action can not be revived on behalf of his administrator. We do not concur in this view. At the time of Carter’s death, the action was pending on the supplemental petition of Carter for the purpose of revivor and final disposition.

After Carter’s death, his administrator- became entitled, within the proper time, to have the action revived in his name by conditional order.

The order having been made, and duly served on the administrators of Jennings, and no sufficient cause being shown to the contrary, the action is ordered to stand revived in the name of Carter’s administrator.

On the supplemental petition, the action is ordered to be revived against the administrators of Jennings. As to all other matters, the cause is remanded to the District Court for further proceeding.

Day, C. J., McIlvaine, Welch, and Stone, JJ., concurred,  