
    Donovan et al., Appellants, v. Decker, Exr., et al., Appellees.
    (No. 4890
    Decided October 8, 1953.)
    
      Mr. George T. Tarbution, Messrs. Benoy S Sebastian and Mr. G. W. Fais, for appellants.
    
      Mr. Robert W. Newlon, Mr. Lloyd E. Bilger and Mr. Richard C. Addison, for appellees.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, sustaining the defendant-appellees’ motion to vacate a judgment entered at a prior term of court for the reason that the court had no jurisdiction to enter the same. The action was to contest the will of Dana McBride and was brought by Edward D. Donovan and William J. Donovan claiming to be “interested persons” under Section 12079, General Code, in that they were brothers of the deceased wife of the testator; that the testator, Dana McBride, died without issue, leaving an estate consisting of the identical property inherited from his deceased wife, Mary McBride; and that, therefore, by virtue of the so-called half-and-half statute (Section 10503-5, General Code) they so qualified as “interested persons.”

It should be noted that the two Donovan brothers were the sole parties plaintiff.

The matter was tried before a jury, proceeded to judgment upon the verdict overturning the will, and the judgment was sustained upon appeal to this court.

Thereafter, at a later term of court, certain defendants filed a motion in the Common Pleas Court to vacate the judgment of the trial court. The motion was based on the ground that the trial court had no jurisdiction to hear the cause or enter judgment. The motion came on for hearing and evidence was adduced to the effect that the testator, Dana McBride, did not die without issue but was survived by two children. Such children also filed a motion requesting the court to amend the pleadings by adding their names as parties plaintiff to the case.

.The plaintiffs urge first that the defendants pursued the wrong remedy in attempting to vacate the judgment ; that the remedy should have been by petition to vacate instead of by a motion. The remedy to be pursued, we think, is dependent upon whether the judgment is void or merely voidable. The motion to vacate 'was filed on the ground that the court had no jurisdiction and that the judgment was void ab initio. We are in accord with the defendants’ contention that the judgment was void. The enjoyment of the right to contest a will “is dependent upon compliance with the statutory conditions and limitations and a failure to comply extinguishes such right.” Case v. Smith, Admx., 142 Ohio St., 95, 50 N. E. (2d), 142.

In the case of Peters v. Moore, 154 Ohio St., 177, 93 N. E. (2d), 683, Chief Justice Weygandt, speaking for a unanimous court, said:

“Inasmuch as the right to contest a will in Ohio is based on mandatory, jurisdictional statutes and the plaintiff has failed to comply with the requirement that the executor be made a party and a summons issued within six months after the will has been admitted to probate, the trial court was correct in dismissing the action.”

The question of jurisdiction may be raised at any time when there is a void judgment. A court has inherent power to vacate or modify its judgment after term, for good and sufficient causes, other than those specified in Section 11631, General Code, the remedy provided in that section being cumulative and not exclusive. Bennett v. Fleming, 105 Ohio St., 352, 137 N. E., 900; Hayes v. Kentucky Joint Stock Land Bank of Lexington, 125 Ohio St., 359, 181 N. E., 542; Haley v. Hanna, 93 Ohio St., 49, 112 N. E., 149.

The distinction between void and voidable judgments is clearly pointed out in the case of Snyder v. Clough, 71 Ohio App., 440, 50 N. E. (2d), 384. The first paragraph of the syllabus of that case is as follows :

“Sections 11631 to 11643, inclusive, General Code, apply to voidable judgments only; hence a judgment void ab initio because of lack of jurisdiction over the person against whom such judgment was rendered, may upon motion be vacated after term by the court which rendered the judgment, without regard to the provisions of those sections.”

This court, in the case of Shaman v. Roberts, 87 Ohio App., 328, 94 N. E. (2d), 630, in an opinion by Judge Wiseman, followed the case of Snyder v. Clough, supra, and said at. page 330:

“Sections 11631 to 11643, inclusive, General Code, apply to voidable judgments only and have no application to a void judgment.”

It is our conclusion that the defendants pursued the proper method in attacking the judgment.

It is next urged that the Donovans successfully maintained the burden of proof in the original action establishing that they were “interested parties” who had a legal right to contest the will. A definition of an interested party is found in Bloor v. Platt, 78 Ohio St., 46, 84 N. E., 604, and quoted in Chilcote, Gdn., v. Hoffman, 97 Ohio St., 98, 119 N. E., 364, L. R. A. 1918D, 575, as follows:

“Any person who has such a direct, immediate and legally ascertained pecuniary interest in the devolution of the testator’s estate as would be impaired or defeated by the probate of the will, or be benefited by setting aside the will, is ‘a person interested.’ ”

It is therefore necessary before a person can bring an action to test the will of another that he meet the standards set forth above as an interested person. If he does not fall into this classification, he is not a proper party plaintiff and, therefore, has no right to bring the action and any judgment rendered under such circumstances is void because of lack of jurisdiction. As stated in the case of Case v. Smith, Admx., supra, the right to contest a will “is dependent upon compliance with the statutory conditions and limitations and a failure to comply extinguishes such right.” See, also, Peters v. Moore, supra.

We find also that the trial court did not err in refusing to substitute the issue of Dana McBride as parties plaintiff. As that court properly stated in its opinion, before substitution is allowable a cause of action must exist.

We find no error in the record and the judgment is affirmed.

Judgment affirmed.

Wiseman, P. J., and Hornbeck, J., concur.  