
    John Hammond v. Mary Hammond et al.
    
    1. "Where a motion for a new trial, on the ground that the verdict is not sustained by sufficient evidence, is overruled, and a reviewing court reverses the judgment of the inferior tribunal, for error in overruling such motion, and remands the case for a new trial, the judgment of the reviewing court will not be reversed by the supreme court, unless it clearly appears that the verdict was sustained by the evidence.
    
      H. A judgment rendered in a proceeding in error will not be reversed for want of jurisdiction of the person of the defendant in error by the reviewing court, though he was not served with a summons in error, where the record shows that he appeared by counsel and submitted the case to the court on its merits.
    3. "Where the plaintiff in an action for the recovery of land dies after final judgment is rendered against him, his heirs may prosecute a petition in error for the reversal of the judgment.
    4. Where such judgment is rendered against a married woman and her husband who is united with her in the action, after her death, he may join with her heirs in a petition in error to reverse the judgment.
    Error to tbe district court of Athens county.
    October 22, 1864, Belinda Hammond brought an action in the court of common pleas of Athens county against John Hammond, for the recovery of a tract of land. He answered, denying her ownership of the land. The case was first tried to the court, (a jury being waived,) which found for the plaintiff, Belinda Hammond. A second trial was taken, as allowed by the- statute, and the jury disagreed. Belinda Hammond married Nehemiah O. Warren, who was made party plaintiff’ with her in the action. Another trial was had to a jury, which disagreed. Again, at the November term, 1866, of the court, the case was tried to a jury, which returned a verdict for the defendant, John Hammond. A motion for a new trial was made, on the ground that the verdict was against the evidence, which was overruled, and judgment was rendered against Nehemiah O.Warx-en for the costs. A bill of exceptions was taken, settixxg forth all the evidence, excepting to the ruling and judgment of the •court.
    
      August 5, 1867, Nehemiak O. Warren filed in the district court a petition in error, alleging the death of his co-plaintiff Belinda Hammond Warren, and asking the reversal of the judgment of the court of common pleas, on the ground that the court erred in overruling the motion for a new trial. A summons in error was issued, but was not returned. At the September term, 1867, of the district court, leave was granted to amend the petition in error, and make the-heirs of Belinda Hammond Warren parties plaintiff. Nothing appearing to have been done under this leave granted, at the next term in September, 1868, the same leave was-again granted by the court, and her heirs appeared and made themselves parties plaintiff to the petition in error. Thereupon both parties appeared by their attorneys, and, on-hearing, the judgment of the common pleas was reversed, and the cause was remanded to that court for further proceedings. No exception appears to have been taken to the action of the court in allowing new parties to be made to the petition in error, or to any ruling of the district court.
    Thereupon the present plaintiff in error, John Hammond, on leave, filed his petition in error in this court, to reverse-the judgment of the district, and he assigns for error : 1. That the court erred in permitting the heirs of Belinda Warren to be made parties; 2. That the court erred in reviving the action, and reinstating it on the docket; 8. That-the court erred in reversing the judgment of the common pleas, and in granting a new trial; 4. That there wás a misjoinder of parties plaintiff in the petition in error; 5. That said heirs “had no legal status in said action as plaintiffs; ” 6. That the judgment of the district court was for the defendants in error, when it should have been for the plaintiff in error.
    
      Simeon Wash for plaintiff in error :
    John Hammond was never in the district court. A summons was issued, but never returned. There was, therefore,, no service in the case.
    The judgment for costs was against Warren and his wife. The wife dies, and Warren has a right to maintain error to get rid of the costs. No other parties than the plaintiff were necessary to have the question passed upon. The heirs of Belinda Hammond had nothing to do with that issue. The interest of Warren and the heirs were separate, and they could not be joined. Warren, as tenant by the curtesy, was alone entitled to recover the land, and to prosecute a petition in error to reverse this judgment.
    More than a year elapsed between the death of Balinda and the making of the order of revivor. After a jrear the revivor could not be made, unless by consent. As to the entry that the parties appeared and argued the case. This was no appearance of the defendant. The record shows that he put in no answer, and that no service was made upon him. There is, then, no waiver of the irregularities and errors.
    The court erred in reversing the judgment on the merits. 24 Conn. 398; 49 Maine, 427; 15 Iowa, 25; 48 Maine, 473; 30 Conn. 313; 18 Ind. 49, 181, 272; 21 Cal. 400; 13 Wis. 175; 22 Geo. 499; 1 Curtis, C. C. 63; 11 Geo. 459; 14 Geo. 27, 285; 23 Cal. 219; 2 Ark. 306; 4 Conn. 426; 11 Id. 440; 4 M. & S. 192; 19 Conn. 300; 3 Little, 10; 1 A. K. Marsh. 28; 3 J. R. 105; 2 Dallas, 55; 3 Call, 568; 2 Bibb, 211; 9 Ind. 256; 6 Ind. 59; 21 Conn. 575; 20 Conn. 570; 5 Mass. 353; 15 Pick. 291; 2 Binn. 495; 12 N. H. 171; 3 Forbes, (N. H.) 1; 43 N. H. 265; 6 Leigh. 230; 5 Id. 598; 7 Mo. 220; 8 S. & M. 305; 37 Barb. 520; 20 Ind. 442; 12 Ohio St. 146; 10 Bosworth, (N. Y.) 198, 268; 9 Florida, 530; 16 Iowa, 183, 337; 18 Wis. 594; 2 E. & E. 413; 24 Call, 378, 419, 513; 22 Ill. 537; 2 Id. 494; 25 Miss. 381; 9 Call, 177; 20 Ill. 93, 343; 3 Parker, C. R. 518; 5 Call, 84; 13 Geo. 24; 7 Texas, 3, 556.
    
      Grovenor & Dana also for plaintiff in error:
    The heirs of Belinda Warren were improperly made parties. They were not parties to the original record. If they came in as the personal representatives of Belinda Warren, it was an attempt to revive the action after more than a year had elapsed.
    Warren filed his petition in error, as he might, but no summons was served, and John Hammond had no notice of the filing. His appearance was not entered by his counsel arguing the case, there being no summons served and no answer.
    The district court erred in granting the new trial, because (1) It was not a proper case for a court sitting as a reviewing court to overrule a jury and court which had heard the evidence; and (2) The verdict of the jury was right, in the light of the evidence. 1 Graham and Waterman on New Trials, 362, 380, 388, 390, 393, 398; Arch. Pr. 222; Gra. Pr. 514; Ashley v. Ashley, 2 Str. 1142; 1 Wills, 22; Swain v. Hall, 3 Wills, 45; Lewis v. Peake, 7 Taunt. 153; Johnson v. Scribner, 6 Conn. 185; Woodward v. Payne, 15 Johns. 493; Ackly v. Kellogg, 3 Johns. 271; Douglass v. Tincey, 2 Wend. 352; Smith v. Hicks, Ib. 48; Fowler v. Ætna Fire Ins. Co. 7 Wend. 270; Reed v. Langford, 3 J. J. Marsh. 421; Hammond v. Wadharns, 5 Mass. 353; Boker v. Briggs, 8 Pick. 122; 3 Call, 276; Lofft. 146, 512; Palmer v. Hyde, 4 Conn. 426; Snyder v. Finley, 1 Coxe, 298; Ibd. 78, 424; 7 Mass. 261; 2 Binn. 129; 1 Bray (Vt.), 170; Bull. N. P. 327; 6 Bacon, Ab. 6663, 664; 2 Binn. 108; 4 Wash. C. C. 32; 5 Ohio, 245, 509; 12 Ohio, 151, 63-75; 6 Ohio, 456; 1 Ohio St. 54; 3 Ohio St. 399; 4 Ohio St. 60, 566; 2 Ohio St. 44-53; 12 Ohio St. 146.
    
      De Stieguer <& Jewett (with W. R. Golden) for defendants in error:
    1. Warren’s right to a reversal of the judgment of the common pleas was not limited to a reversal as to costs. By r.he death of his wife he became tenant by the curtesy in her lands. He was entitled to a reversal of the whole judgment.
    2. The heirs of Belinda Hammond could file a petition in error, founded on the error in the action against her and ho; husband. The prosecution of proceedings in error by th*. m was not a revivor of a former action, but was a proceeding in a new action. Code, secs. 398, 400, 513, 515, 517, 523; 16 Ohio St. 284; Lessee of Taylor v. Boyd, 3 Ohio, 337; Kerr and Wife v. Bank of Chillicothe, Wright’s Rep. 737; Ewing v. Hollister, 7 Ohio (pt. 2), 183.
    3. Warren and the heirs could unite in the proceeding. Swan’s Pl. and Pr. 87, 88, 89; Brinkerhoff v. Brown, 6 Johns. Ch. 139; Fellows v. Fellows, 4 Cowan, 682; Boyd v. Hoyt, 5 Paige, 65; Code, sec. 34. They had a common if not a joint interest in the error complained of, and in the' reversal of the judgment.
    4. It is said no summons in error was served on the defendant. But the record shows that the parties appeared by their attorneys. That is sufficient. Abernathy v. Latimore, Jenkins & Co. 19 Ohio, 233; Fee v. Big Sandy Iron Co. 13 Ohio, 565; Evans v. Iles, 7 Ohio St. 233; Marsden v. Soper, 11 Ohio St. 503; Broome’s Legal Maxims (6th Am. ed.), §§ 907, 910, 914, 915; 20 Ohio, 344.
    5. As a general rule such a judgment as the one sought, to be reversed will not be considered the subject of reversal. Spafford v. Bradley, 20 Ohio, 74.
    6. The district court did not err in reversing the judgment of the common pleas. 2 Tidd’s Pr. sec. 904; Code, sec. 297, sub. 6; Webb v. Protection Ins. Co. 6 Ohio, 456; Lessee of Mulenburg's Heirs v. Florence, 5 Ohio, 245; 2 Ohio St. 53; 4 Ohio St. 60, 567.
   Day, J.

This case comes before us on a petition in error,, authorized by the fourth section of the act of 1858 “to relieve the district courts,” &c., to reverse the judgment of the district court. But one question was made in that court, which was, whether the court of common pleas erred in refusing to grant a new trial, on the ground that the verdict, was not sustained by sufficient evidence. The court held the affirmative of this proposition, reversed the judgment of the common pleas, and remanded the case to that court for a new trial. We are now asked to reverse the judgment of the-district court, which resulted in the granting of a new trial, on the ground that the verdict was not sustained by sufficient evidence. Undoubtedly this court has the legal authority to do so (Schaeffer v. Marienthal, 17 Ohio St. 183); but is this a proper case for its exercise-?

In Spafford v. Bradley (20 Ohio, 74), under the act of 1845, which contained the same provisions as those of the fourth section of the act of 1858, it was held that “a judgment of the supreme court on the circuit, reversing the judgment of an inferior tribunal for refusing a new trial, where it was claimed that the finding was against the evidence, will not, as a general rule, be considered as the subject of reversal,” by the court in bank.

The district court, under the present organization of the courts, being the successor of the old supreme court on the circuit, that case is directly in point in the one before us.

In Beatty v. Hatcher, (13 Ohio St. 115), this court approve the doctrine of the case of Spafford v. Bradley, in cases arising under the fourth section of the act of 1858.

In neither case, however, was it denied that the reviewing court possessed the power to reverse a judgment of an inferior tribunal for error in granting a new trial, on the ground that the verdict was not sustained by sufficient evidence. But it was held, that it would “ require a strong ease to justify its exercise.”

The reason for distinguishing between the refusing and the granting of a new trial is obvious. ' A refusal to grant a new trial might operate to prevent a total failure of justice, and therefore, require the interference of a reviewing court. On the contrary, no irreparable wrong can be done by granting a new trial, which merely “ compels the parties to retrace their steps, and submit their proofs and allegations a second time to the same tribunal.”

Is this, then, such a strong case” of error on the part of the district court, in reversing the judgment of the common pleas for refusing a new trial, and remanding it for another trial, as will justify this court in reversing the judgment of the district court ? We think not. The testimony is not sufficiently preponderating and conclusive, to warrant us in interfering to prevent a new tidal. On this point, it is proper to say, that, after a careful consideration of the evidence disclosed by the record, a majority of the members of this court are not satisfied that the district court erred upon the question submitted to it, and, probably, they would not agree if required to decide the case upon the evidence. We all concur, therefore, that it is clearly a case in which the rule applied in the case of Spafford v. Bradley, should be adhered to, and that the action of the district court should not be disturbed, so far as it relates to the only question that was submitted to it.

This disposes of the principal question in the case. Others of minor importance are urged. The jurisdiction of the district court over the person of the defendant in that court is denied. The record, it is true, does not show that he was served with a summons in error, but it does show that he appeared by his attorney, by whom the case was argued in that court. This is sufficient evidence, in a proceeding in error, that he was properly in court. Under the statute, service of a summons on the attorney of record of the defendant in error, is sufficient to bring the defendant into court.

His attorney may, therefore, waive service of summons, •or appear in court for him, and thus perfect the jurisdiction of the reviewing court.

It is claimed that the leave granted by the district court :to make the heirs of Belinda Warren parties plaintiff to the petition in error, was an erroneous revivor of the action. This position cannot be maintained. It was in no proper •sense a revivor of an action. The action had been terminated by final judgment. Nor was it an attempt under the ■statute to make the heirs of the deceased party parties to the judgment. On the contrary, it was an adversary proceeding ■to annul the judgment. It partook of the nature of an orignal proceeding. It had to be commenced by petition and summons, and was subject to many of the incidents of original actions. Robinson v. Orr, 16 Ohio St. 284.

In Smetlers v. Rainey, (13 Ohio St. 568), it was held, that ■“ all the parties interested in the judgment, which it is sought •to reverse, should be brought before the court, so that the affirmance, reversal or modification of the judgment, when made, shall bind all the parties.” And, subsequently, in the same case (14 Ohio St. 287), it was held, “ that sections 34, 35, and 36, in relation to parties to civil actions, by analogy at least, determine who should be made parties to the proceeding.” It is provided in one of those sections that “ all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs,” etc.

The original plaintiff in the action, and claimant of the land in controversy, had died after the judgment against her. Her husband, who was a party plaintiff with her, by the judgment was barred of his interest in the land, to which, by the law of this State, he was entitled by the curtesy. His right to bring his proceeding in error in the district court to reverse that judgment is not questioned; for he is not made a party to the petition in error in this court. The right of the heirs of the deceased party who claimed the fee of the land, to attack the judgment which debarred their right, cannot be denied. They had an equal interest with the other plaintiff in procuring the reversal of the judgment. They were, then, proper pai’ties to the proceeding for that purpose. Nay, it would seem that the defendant in that proceeding might demand that they should be made parties. It was, moreover, for his interest that they should be parties, “so that,” as said in Smetters v. Rainey, “the affirmance, reversal or modification of the judgment, when made, should bind all parties.”

This view of the case also disposes of the other question made, as to the misjoinder of parties plaintiff in the distract court. No question was made in the district court (that appears of record) upon any of the matters assigned here as error, except that relating to the new trial; nor do we discover that the plaintiff in error here was prejudiced by the action of that court, otherwise than by its ruling upon the only matter brought in question, as to which, we have already said, this court cannot affirm that there was mani-ffest error. It results that the judgment of the district court must be affirmed.

Welch, C. J., and White, McIlvaine and West, JJ., concurred.  