
    William J. Welton’s Administrator v. Edward Williams’ Administrators.
    1. Where a judgment is rendered in an action in the court of common pleas for the recovery of money only, dismissing' the plaintiff’s case at his costs, for the reason that there is no sufficient service on the defendant, and it subsequently appears, though unknown to the court or the parties at the time, that said plaintiff had died pending the action, his personal representative is the proper parly to institute proceedings to obtain relief for any error of the court in rendering such judgment of dismissal; and he may proceed to have the same vacated under the 534th section of the code of civil procedure, and assign as error of fact ■ the death of the intestate when the judgment was rendered; or, if there be errors of law apparent on the record, he may proceed by a petition in error in the district court to have such judgment reversed.
    2. Upon such proceeding in the district court, where the defendant is before the court by proper service, that court has jurisdiction to hear and determine the issues of law presented, and if the judgment of the common pleas is reversed and the cause is remanded for further proceedings according to law, sueli proceedings and judgment operate as a revivor of the original action in the name of such representative.
    After such reversal, and after the cause was remanded to the common pleas and placed upon the docket, it is error to dismiss said action, because the same was not revived in that court within one year from the date of plaintiff’s death.
    Error to the District Court of Franklin county.
    The leading facts necessary to an understanding of this case are found stated in the case of Williams’ Adm’rs v. Welton, just decided.
    After the final judgment in the common pleas, rendered January 12, 1869, dismissing Welton’s action for want of service, Snowden, the present plaintiff, was appointed administrator of Welton, and as such commenced an action in the district court to reverse the judgment against the intestate.
    Issue was joined on the assignment of errors, and both parties appeared by attorneys and argued the case. At the May term, 1871, the district court reversed the judgment •of the common pleas, and remanded the case back to that court to be proceeded in according to law. That judgment has just been affirmed in part in the case §bove referred to.
    After the case was again on the common pleas docket, defendants moved to dismiss, and showed to the court that Welton, in fact, died October 30, 1858, and on this showing the action was declared abated.
    On error, a second time to the district court, this last judgment abating the action was affirmed, and this action is now prosecuted to reverse the judgments of the courts below.
    In support of the action of the district and common pleas courts, it is insisted that as more than three years had -elapsed after the death of Welton without any revivor, the .action must abate notwithstanding the proceedings in the district court in the name of the administrator.
    On the other side, it is claimed that when Snowden became the administrator of Welton, he might prosecute error in the district court to reverse a judgment, final in form, for errors appearing on the record, and that the appearance of defendants in the case, and consenting to the hearing, gave the district court jurisdiction of the persons, parties to the judgment, as well as of the subject-matter, for the purposes of that action, and that the judgment of reversal and the mandate operated as a revivor of the action, if any such was needed in the court below.
    
      C. N. Olds, for plaintiff in error:
    I. The original action could not be revived -in the common pleas under the statutory provisions on that subject upon the discovery of the death of Yfelton, the plaintiff, for the reason that the action had been already stricken from the docket and the petition dismissed.
    The statute of revivor (S. & O. 1058, sees. 400, 407, 411-413) applies to an action pending in court and standing on the docket of the court.
    Here there was no action standing on the docket.
    
      The parties to the action and the action itself were all out of court, and the court had adjourned without day.
    The next term of court did not begin until after the term of the district court in which relief was sought by petition in error.
    II. It was a substantial compliance with the statute to have the suggestion of the death and the appointment of the legal representative made in the petition in error, and the petition prosecuted, as it was, in the name of the administrator.
    III. If not a substantial compliance with, it was a proper substitute for, the statutory proceedings.
    Under section 39 of the code, the court may allow the action to continue by or against the representative of a deceased party without a resort to the statutory proceedings. So this court has held in the case of Carter v. Jennings, 24 Ohio St. 182.
    TV". The defendants having appeared by counsel in the district court, and argued and submitted the petition in error without interposing any objection to this mode of reviving or continuing the action, are estopped from making the objection afterward.
    V. The action in the district court was not a new and independent suit, as the writ of error under the old practice act before the code was held to be in Cisna v. Beach, 15 Ohio, 300.
    The case is quite different under the code. See section 515.
    VI. But if held to be a new suit, then no revivor is-necessary at all, and when the case has been sent by mandate to the common pleas for further proceedings, standing there in the name of the administrator, it is simply absurd to say there must still be an order to put it into his name,, it being there and in his name already.
    
      Harrison & Olds, for defendants in error:
    I. As to revivox*.
    Section 411 plainly provides for an order to revive an action in the names of the representatives or successor of a plaintiff, in the court in which the action is pending at the time of the plaintiff’s decease. Such an order can not be made in any other court. Nor can it be made in any other action than the one which abates by the plaintiff’s decease.
    No order to revive said action, brought by said Welton, was ever made in that action. In fact, no motion or application was ever made for an order to revive it.
    Evidently, therefore, the court of common pleas, when it ordered the action commenced by Welton to be stricken from the docket, did not err, but simply discharged a duty prescribed by section 412 of the code.
    A writ of error is a new and original suit. Taylor v. Boyd, 3 Ohio, 337; Cisna v. Beach, 15 Ohio, 300; Robinson v. Orr, 16 Ohio St. 284.
    The former suit in error, referred to in the affidavit of the counsel for the administrator of Welton, and prosecuted in the district court to final judgment, was, therefore, not a continuation of the action in attachment in the common pleas.
    That suit in error was not a suit brought to revive that action. As a suit for such a purpose, it manifestly could not have been maintained. On the contrary, the object of it was to reverse the judgment in the attachment suit. As-a suit in error for that purpose, the administrator of Welton had a right to maintain it, and Williams’ administrators could not lawfully object to the prosecution of it. Consequently, the fact that they did not object to Welton’s administrator prosecuting his petition to reverse the judgment in the attachment suit, did not preclude them from, objecting to the revival of the action in attachment in the common pleas, after the period for the revival thereof had expired.
    A petition in error to reverse a judgment for errors of law merely presents the question whether or not the errors-of law appear in the record of the court below. Hence, Williams’ administrators could not have interposed, as-a bar to the prosecution of a petition in error by Wei-■ton’s administrater, the fact that Welton was dead when the judgment sought to be reversed was rendered.
    There was, therefore, no waiver, on the part of Williams’ administrators, of their legal right to object to the revival of the action begun by Welton in the common pleas.
    The order of the district court commanding the common pleas to “ proceed according to law,” simply required the common pleas to do what was actually done by that court, when they made the order, on defendants’ motion, striking the cause from the docket, for the reason that it had abated by the plaintiff’s decease, and no steps had been taken to revive it. In so doing, the common pleas did “ proceed ■according to law.”
    
    The administrators of Williams never consented to the revival of the action brought by Welton, and which abated by his death. On the contrary, they objected thereto the first opportunity they had after the expiration of the year subsequent to his death, during which it might have been revived by his administrator.
    After the death of Welton, and after the rendition of the judgment in the common pleas dismissing the case, his administrator could have filed a petition in the common pleas (not in the district court) to vacate that judgment, on the ground that Welton was dead when it was rendered. See Code, sec. 534, subd. 6.
    By this provision a judgment may be vacated, if at the time of its rendition the party against whom it was ren■dered was then deceased, although no error is apparent on the record. Upon the vacation of such a judgment, the action stands precisely as it would have stood had the plaintiff’s death not occurred. Hence, if more than one year has not elapsed between his decease and the vacation of the judgment and the application to revive the action, it may be revived on such application. And if such year has elapsed, so that the action can not be revived under title 13, chapter 1, of the code, a new suit for the same right of .action may be commenced by the personal representative of the decedent, or he may, by filing suplemental pleadings and service of process as at the commencement of an action, obtain leave to prosecute the case, if, after a full hearing, the court is of opinion such leave ought to be grauted. Thus interpreted, all the provisions of the code on this subject are in harmony, and effect is given to all of them.
   Johnson, J.

From the record, it appears that Welton was dead when the original judgment of January 12, 1869,. was rendered against him, though unknown to all parties, and that subsequently Snowden was appointed his administrator.

It further appears that, as such administrator, Snowden began proceedings in error, in the district court, to reverse-that judgment, assigning errors of law only as the ground for a reversal.

In said action in the district court, the defendants were served, and appeared by attorney and joined issue upon the-assignment of errors.

All the parties were thus before the court, and its judgment reversing the common pleas was final.

This court has just affirmed, in part, that judgment of reversal, and another mandate will be sent down, commanding the common pleas to proceed according to law. If the-last judgment of the common pleas, abating the action, after a mandate from the district court was received commanding that court to proceed, be correct, then a like-judgment will be equally proper when the mandate from this coui’t is received in the case just decided, and the common pleas may again dismiss the action, and so indefinitely each time its action is reversed.

The administrator was the proper party to represent the estate. A judgment had been rendered against his intestate after his death, and for that reason might be vacated by motion, under section 584 of the code, by a proceeding-in the nature of a writ of error coram nobis, assigning as-an error of fact the death of Welton before the judgment was rendered.

Had he chosen this course, the judgment would have-been vacated, and the case would again stand for hearing on the motions to quash. Of course the court would again render the same judgments on these motions, and this time bind him as the personal representative, as a final judgment against his right to proceed in the action, and he would at last be driven to his proceeding in error.

He had nothing to gain by such a proceeding, under section 534, and might lose much by making the estate liable. As the judgment stood, it could not be successfully •enforced against the estate, but as it would stand, if he thus became a party to it, by proceeding under section 534, it would, until reversed on error, bind the estate for costs, if no further. Eor these reasons, as well as to avoid cir•cuity of action, we think the administrator might, in the first instance,, prosecute his action for errors of law appearing on the face of the record, and if he succeeded, he would have accomplished by one action all he could by two in the other mode.

In this action, in the district court, he was not seeking to reverse, because the plaintiff was dead when the judgment was rendered, and which was therefore void ; but for errors of law, which stood in his way of proceeding further in the cause of action.

In this action, all parties seemed to have acted in ignorance that the death of Welton was piior to the judgment sought to be x’eversed.

In that action, defendants appeared by counsel, and consented to a hearing in Pickaway county, and afterward ai’gued the case as made on ex’ror.

The district court reversed the judgment of dismissal and remanded the case.

All the pax’ties were then before the court upon these issues of law, and this j udgment restored to Snowden, administrator of Welton, all that Welton had lost by the ex’ror of the common pleas.

After it again reached the latter court, this motion to abate was filed and sustained. After January 12, 1869, it ceased to be a pending action in that court, until it again was docketed under the mandate, in May, 1871.

The provisions of the code, under which the abatement was ordered, apply only to pending actions.

This action was not a pending action in the common pleas until the mandate was entered.

It was in the district court, where the plaintiff properly represented the action.

The district court reversed the judgment of dismissal, and remanded the case for further proceedings.

The legal effect of all these proceedings in error was, when the case reached the common pleas, that the action stood revived in the name of the personal representative, to be proceeded in according to law.

The action of the common pleas, in treating the case as one pending in that court, and subject to abatement as such, after being remanded, was clearly erroneous.

Judgment reversed and cause remanded.  