
    Thomas W. Abernathy v. Latimore, Jenkins & Co.
    After the defendant has appeared by attorney in the court below, pleaded to the action, and judgment has been rendered against him, he cannot assign for error in the supreme court, that he was not served with process, nor that the attorney who appealed and defended for him, did so without authority.
    Where an attorney appears without authority, and acknowledges service, or files a plea, and judgment has been entered against the defendant, the court may on motion vacate the judgment, and let him in to defend.
    By the act of February 27th, 1846, suit may be brought and declaration filed in the name' of a firm or company, without specifying the names of the members of the company.
    This is a writ of error to the court of Common Pleas of Clermont county.
    The record in the case shows that on the fourth of October, 1849, a summons was issued at the suit of the defendants in error, by the name of Latimore, Jenkins & Co., against Thos. W. Abernathy and Nehemiah Morse in an action of debt, and directed to the sheriff of Clermont for service and return. The writ was issued during the September term, 1849, of the court of common pleas of Clermont county, and made returnable forthwith.
    This writ was returned on the same day, indorsed as fol lows: “ We do hereby waive the service of process, and enter our appearance in the above case,” signed “'S. W. Abernathy, Nehemiah Morse, by Smith & Ashburn, their attorneys.”
    Smith and Ashburn are regular attorneys, praticing law in the county of Clermont.
    On the 5th day of November, of the same year, the plaintiff below filed a declaration in debt, against Abernathy and Morse, upon a sealed bill for one hundred and nineteen dollars and eighty-five cents; the declaration- also containing the common counts.
    On the 8d of December of the same year, a plea of the general issue was filed to this declaration, which was signed by Smith and Ashburn as attorneys for the defendants.
    During the pendency of the suit, Morse died, and his death was suggested in pursuance of the statute.
    At the April term of the court of common pleas, the parties appeared by their attorneys, and by their consent the case was submitted to the court. The court found the issue joined for the plaintiff below, and entered a judgment against Abernathy, tbe surviving defendant, for one hundred and nineteen dollars and eighty-five cents debt, seven dollars and forty-three cents damages and costs.
    To reverse the aforesaid judgment this writ of error is prosecuted.
    The errors assigned are—
    1. That neither the plaintiff in error, nor his co-defendant in the original suit was served with process.
    2. That neither of the said defendants in said original suit, authorized any agent or attorney to appear for them in said case.
    8. That the alleged appearance of the attorneys for the defendant in that case was without authority.
    4. That the plaintiffs have declared and obtained judgment in the name of Latimore, Jenkins & Co., without stating the Christian names, or names of the persons composing the said company.
    5. Other errors apparent upon the record and proceeding.
    
      
      John Jolliffe, for plaintiff in error.
    
      Fishback & Swing, for defendants.
   Hitchcock, C. J.

The first error assigned in this case is, that there was no service of process upon the defendant below, the present plaintiff in error. Had this been a judgment by default, this error might have been well assigned, but the record shows an appearance of the parties by their attorneys, that a plea was filed, an issue made up, and the case, by agreement, submitted to the court. Upon the record, then, it is apparent that the plaintiff in error had a day in court, and having submitted to the jurisdiction, it is too late for him now to complain that he was not served with process. It is proper to say, in addition, that a summons was issued in the case, and service accepted by the same attorneys, who afterwards appeared in court and made defense.

The second and third errors relied upon are, that these attorneys were not authorized to accept service of process, nor to appear and defend in the action. This is not an error apparent upon the record, but is outside the record. If it be an error at all, if is an error of fact and not of law, and such assignment cannot be joined with errors in law. But if the plaintiff in error has sustained an injury by the improper interference of these attorneys, his appropriate remedy is not by writ of error to remove the cause to a superior court. Errors in fact are corrected by the court where committed. This is not, however, one of those errors in fact which could be corrected by the court in which it was committed by writ of error coram nobis. That court had the power, and upon proper showing would have set aside or vacated the judgment, on motion, and let the defendant in to defend. (3 Ohio Rep. 521.) But as the attorney for the plaintiff in error has gone out of the record to make this assignment, it is perhaps proper for the court to go so far out of the record as to say, that there is evidence among the papers in the case which fully satisfies us that the attorneys who appeared to the action in the court below, were fully authorized so to do.

The fourth error assigned is, that the plaintiffs have declared and obtained judgment by the name of Latimore, Jenkins & Co., without setting out the names of the persons constituting the company.

This is an objection which, if raised at all, should have been done by plea in abatement. But it is no valid objection. This mode of declaring-is expressly authorized by the act of February 27, 1846 — (44 Ohio L. 66.)

The plaintiff says, there are other errors in the record, but we have not been able to discover them.

The judgment of the Court of Common Pleas is affirmed with costs.  