
    Pleasant Fitzgerald, for the use of John D. Kirkpatrick, Buckley A. Rose and John Kirkwood, partners, under the name and style of Kirkpatrick, Kirkwood & Co. v. James P. Cross.
    1. In a proceeding under section 75 of the Code of Civil Procedure, to open. up a judgment rendered without other service than by publication in a newspaper, the notice required to be given to the adverse party must be given to such party to the case as may be interested in maintaining such judgment.
    2. In such case, where the action is in the name of F. for the use of K. K. & R., with the judgment in like form, and the record shows that F. had no interest therein, but was a nominal party merely, and that the action was prosecuted by, and the judgment rendered was for the sole and exclusive use of K. Ii. & R-; it is sufficient in such proceedings to serve notice on K. K. & R., as the adverse party to such judgments.
    3. Where an answer is filed, setting up a cross-demand in the nature of a counter-claim, which is within the original jurisdiction of the court, and the plaintiff, without objecting thereto, puts the same in issue, and the case proceeds to trial and judgment thereon against the plaintiff: Held, That upon error by the plaintiff to reverse such judgment, he will be considered as having waived the question, whether such cross-demand was the proper subject of counter-claim.
    Error to the District Court of Champaign county.
    
      The petition alleges that in August, 1866, the defendant, Cross, was the owner of letters patent for an improved burning fluid ; that in January, 1867, the plaintiff, Pleasant Fitzgerald, was the owner of Cross’s patent, for the counties of Campbell, Kenton, and Bracken, in the State of Kentucky, which Cross desired to purchase, and for .that purpose he agreed to convey to Fitzgerald an interest, to the value of $2,000, in said patent in twenty-six counties in the State of Ohio, for a like conveyance to him of said three counties by Fitzgerald.
    It is further alleged that in execution of-this exchange of territory in said patent, Cross conveyed, to the value of $2,000, an interest in the twenty-six counties in Ohio to Fitzgerald, and the latter conveyed to the former the right to the three counties in Kentucky.
    The petition further alleges, that Cross had no title to said twenty-six counties, which fact the plaintiff afterwards discovered ; and that the firm of Kirkpatrick, Kirkwood & Rose, were in fact the owners of the patent to said counties; also that Kirkpatrick, Kirkwood & Rose proposed to and did convey to Fitzgerald the interest wrhich Cross had failed to convey to him in said counties, and agreed “ to look to the collection of Fitzgerald’s claim against the defendant,” for payment.
    By this arrangement or contract Kirkpatrick, Kirkwood & Rose became the owners in fact of whatever claim Fitzgerald held against Cross for damages, or otherwise, in failing to convey to the former a good title to the interest in said twenty-six counties.
    The prayer for judgment is as follows :
    “ 5. Wherefore the plaintiff prays a judgment against the said defendant for the said sum of two thousaud dollars, for the use of the said Kirkpatrick, Kirkwood § Bose, with interest thereon from the .... day of January, a. d. 1867.”
    This petition is verified by John Kirkwood, one of said firm, as agent of Fitzgerald.
    Upon affidavits that Cross was a non-resident of the State of Ohio, residing in New York, having property in this state, etc., a writ of attachment was issued, and the defendant was served by publication, but he made no appearance in the case until after final judgment. 'June 29, 1867, judgment by default was rendered, for $2,000, against the defendant, for the use of Kirkwood, Kirkpatrick § Rose, and an order for the sale of the real estate attached was made. Upon the attachment, land in Champaign and Washington counties had been seized and appraised, and was sold under this order. The land attached in Champaign county was appraised at $800, and sold for $533J; and that attached in Washington county was appraised at $600, and sold for $400.
    At these sales, which were regularly confirmed, the lands were purchased in for the benefit of Kirkwood, Kirkpatrick & Rose.
    December 27, 1869, the defendant, proceeding under section 75 of the civil code, to vacate the judgment against, him, caused the sheriff to notify Kirkwood, Kirkpatrick § Rose that on a day named he would move to vacate and set aside said judgment.
    Afterward the following order was made, on the hearing of said motion : “ This day came on this cause to be heard on motion of defendant to redocket said case and open up the judgment obtained against him, in the above case, at the June term of common pleas court, a. d. 1867, for the sum of $2,000, and asking further that he, the said defendant, be allowed to file his answer and have the ease fully tried. Affidavits being read, and by consent of parties oral testimony being produced, to show that said defendant had no knowledge of the bringing of above action in time to make a defense, service having been obtained by publication, the court, after hearing arguments of counsel, does order that the judgment above mentioned be opened up, that the defendant be allowed to answer and .have the case fully heard, and for such hearing this case is continued.”
    To this order no objection was made, nor exception taken at the time.
    
      Thereupon the defendant filed an answer, putting in issue the plaintiffs’ cause of action.
    Subsequently, and upon leave of the court, the defendant filed an additional and amended answer. It was in the nature of a counterclaim, to recover damages for the land sold under the proceedings in attachment.
    It charges that Kirkwood, Kirkpatrick & Rose are the real parties plaintiff, and that this action was commenced and carried on for their exclusive use and benefit, who instigated and have carried the same on, and that the property sold was purchased at sheriff’s sale, and is held for their exclusive use and benefit, and the defendant, therefore, asks a judgment against them for $1,400, the appraised value of the land sold.
    Kirkwood, Kirkpatrick & Rose filed a reply, in which they deny all the allegations of the additional answer, except that they are the real parties in interest in the action. This allegation is admitted by a failure to deny it.
    March 11, 1871, after several continuances, the firm of Kirkwood, Kirkpatrick & Rose moved the court to dismiss “ the proceedings now being had,” as well as the answer and amended answer, from the files, because said Pleasant Fitzgerald was not notified of the motion to vacate and set aside the judgment.
    This motion was overruled.
    “ The issues joined” were thereupon tried to a jury, which resulted in a verdict in damages in favor o-f the defendant. A second trial was had, on plaintiffs’ motion, with a like verdict for $1,100 and interest, followed by a motion for a new trial by plaintiffs, a.bill of exceptions, and a judgment on the verdict.
    The district court, on error, affirmed this judgment, and this action is prosecuted to reverse the judgment rendered below.
    Sundry questions are made on the action of the court on the trial, which will be explained in the opinion. ,
    
      Young & Chance and J. Deuel, for plaintiff in error.
    
      
      Harrison, Olds & Marsh and Warnock & Eschelberger, for defendant in error.
   Johnson, J.

1. The judgment in favor of the plaintiffs was rendered upon a constructive service.

The notice given by the defendant to open up such judgment was directed to, and served upon the firm of Kirk-wood, Kirkpatrick & Rose, and not upon Pleasant Fitzgerald.

The code, section 75, provides that: “Before the judgment or order shall be opened up, the applicant shall give notice to the adverse parly of his intention to make such application,” etc. If Pleasant Fitzgerald was an adverse party, and as such entitled to notice, then the court erred. By the averments of the petition, Fitzgerald had a claim, or rather a cause of action, sounding in damages against Cross, for a failure to convey an interest in a patent right, to the value of $3,000, in twenty-six counties in Ohio. Kirkwood, Kirkpatrick & Rose, and not Cross, owned the right to these counties, and agreed to convey that interest, which Cross had failed to convey, and, in payment, look to the collection of this claim - that Fitzgerald had against Cross.

In short, Fitzgerald assigned a cause of action, which, it is alleged, he had against Cross, to Kirkwood, Kirkpatrick & Rose, in payment for an interest in a patent right for certain territory named.

Assuming that this cause of action was assignable, and that the allegations of the petition are true, it follows that Kirkwood, Kirkpatrick & Rose were the real parties in interest, and solely entitled to the proceeds of the judgment, when collected.

Again, upon the allegations of defendant’s additional answer, which was a cross-petition in fact, and the reply thereto by Kirkwood, Kirkpatrick & Rose, it was, by silence, admitted that the firm were the exclusive owners of said claim, and that the action was instigated and prosecuted for their sole benefit.

These facts show that Eitzgerald, in whose name suit was brought for the use of the firm, was a nominal party only, having no interest whatever in the controversy, and that the real party in interest was the firm of Kirkwood, Kirkpatrick & Rose. "Was Eitzgerald, therefore, an adverse-party in the proceedings to open up ?

We think, to constitute a party adverse to the defendant, within the meaning of section 75 of the code, it must be one having a real and substantial interest in the controversy, or at ieast one who is a necessary or proper party to such judgment.

This is no longer an open question in this state. Hadley v. Dunlop, 10 Ohio St. 1; Allen v. Miller, 11 Ohio St. 374; Hutchinson v. Hutchinson, cited in last case; Wolf v. Powner, decided at the present term.

2. It is further alleged as error, that the court allowed this additional answer and cross-demand to be filed, after plaintiffs’ judgment was vacated, the object of which was to-recover for the land sold on the attachment and purchased in for the benefit of Kirkwood, Kirkpatrick & Rose.

It is said this cross-demand did not exist at the commencement of plaintiffs’ action, and was not asserted against Eitzgerald, and that it was neither a counter-claim nor a set-off to the plaintiff’s cause of action.

Conceding this to be so, the record shows that the plaintiffs, Kirkwood, Kirkpatrick & Rose, made no objection to this answer, but joined issue thereon by a reply, and contested the .defendant’s claim before two juries, and afterward prosecuted a writ of error in the district court and afterward in this court, in neither of which is it specially, assigned for error that this cross-action was not a proper counter-claim.

On the contrary, several of the assignments of error are predicated on the charge of the court on this cross-demand, which assumed the defendant’s right to recover something if it was proved. The sole objection was, “that the defendant could not be entitled to recover in any event,” ■“ and could not proceed to trial of this cause,” because notice toas not given to Fitzgerald of the opening up of the judgment in favor of plaintiff, thus impliedly admitting that if such notice had. been given, there would be no objection.

The court had jurisdiction of the subject-matter of this -cross-demand, and also of the parties to it. After joining 'issue thereon, and having, without objection, had the benefit of a full and, so far as appears, a fair .trial, and after the case comes into this court without assigning this for ■error in the district court or in this court, we chink it clear that it is now too late to complain. It was competent for the court of common pleas to take original jurisdiction by "the mutual consent and submission of the parties; and, render, the circumstances of the case, it will be held to have done so. Wood v. O’Ferrell et al., 19 Ohio St. 427; Fisher v. Richards, 9 Ohio St. 495; Harrington v. Heath, 15 Ohio St. 483; Thomas v. Pemrich, Assignee, 28 Ohio St. 55; Woodward v. Sloan, 27 Ohio St. 592.

Counsel have presented and argued sundry other alleged ■errors.

"We are relieved from an examination of them in detail, for the reason that as to some no timely exception was taken.; as to others, no exception at all was made in the •court below; and because, as to all of them, the bill of ex■ceptions fails to present them in such way as to show there was error to the prejudice of the parties complaining. Adams v. The State, 25 Ohio St. 584; Jones v. Osgood, 2 :Seld. 233; Insurance Co. v. Sea, 21 Wall. 158; Pittsburg, Ft. Wayne and Chicago P. W. Co. v. Probtst, 30 Ohio St. 104; M. & C. R. R. Co. v. Strader, 29 Ohio St. 448; Harvey Adams v. The State, 29 Ohio St. 412; Geauga Ins. Co. v. Street, 19 Ohio, 300.

Judgment affirmed.  