#### A. H. Brundage *v.*John S. Biggs.

1. "Where a defendant in his answer, by way of cross-petition, set up an equitable interest in certain real estate, the legal title to which was in the wife of the plaintiff, who, having been ordered by the court to he made a party, applied, by her attorney, and obtained leave to answer— *Held,*that the wife, by obtaining such leave, effected her appearance as a party to the suit; and that a purchaser, who afterward acquired title to the property from the husband and wife, is chargeable with notice of the suit.

2. The order vacating, for irregularity, an order entered at a previous term, dismissing an appeal, will be presumed, in the absence of a showing to the contrary, to have been made on sufficient grounds; and a motion to sot it aside comes too late after the trial of the case upon the merits.

3. The effect of vacating the order of dismissal is to bz-ing the ease again before the couz-t for trial; and a finding of the merits, on the final trial, in favor of the party against whom the ii'regularity was committed, is a sufficient compliance with section 538 of the code.

Motion for leave to file a petition in error to reverse the judgment of the District Coui’t of Greene county.

The original petition was filed by William M. Long against John S. Biggs, for the settlement of a partnership. In his answer, Biggs, among other things, set up, by way of cross-petition, a misapplication of partnership funds by *653Long.in purchasing certain real estate, which he had fraudulently caused to be conveyed to his wife, Rachel Long. The answer asked that she and the person from whom the property was purchased, be made parties, and that the property so held by her be subjected to the purposes of the partnership. On the application of Biggs, she and the vendor were ordered to be made parties defendant, and a summons was directed to be issued for the purpose. The summons notified her and the vendor, that they (impleaded with John S. Biggs) had been sued by William Long, and that unless they answered by a day named, the petition of Long against them would he taken as true, and judgment rendered accordingly. The summons was duly served on Mrs. Long.

After the time for answer had expired, the journal shows the following entry : “ On motion of M. Barlow, attorney for William and Rachel Long, leave is given said William Long to reply to the amended answer of the defendant Biggs, and for the said Rachel Long to answer, by the 15th of December next.” A reply was filed by William Long ti’aversing the averments of the answer, but no pleading was filed by Mrs. Long. Subsequently, the property in controversy was conveyed by Long and wife to the plaintiff in error, Brundage, who purchased without actual notice of the pendency of the suit. He subsequently was made a party to the suit.

The trial in the Court of Common Pleas resulted in a finding and judgment against Biggs, from which he duly took an appeal to the District Court.

At the April term, 1873, of the District Court, the following order was entered in the cause : “ It appearing to the court that said appellant, John A. Biggs, fails to prosecute his said appeal, on motion of counsel for A. H. Brundage, it is ordered that the same be dismissed at the costs of said John S. Biggs.”

At the April term, 1874, this order, on motion of Biggs, was set aside as having been irregularly entered; and the ease was ordered to he reinstated on the docket, and set *654clown for hearing. An exception was noted on the journal by the plaintiff in error, but no bill of exceptions was taken disclosing the showing on which the order was made.

At the April term, 1875, the case was tried on its merits, and the finding and judgment were in favor of Biggs.

A motion for a new trial was made and overruled; also a motion to set aside the order made at the ,April term, 1874, vacating the former order of dismissal. This motion was likewise overruled. To this ruling a bill of exceptions was taken, embodying affidavits, showing the circumstances under which the order was made.

Leave is now asked to file a petition in error in this court. The grounds of the application sufficiently appear in the opinion.

*Little §*Shearer, for the motion:

I. Brundage was a purchaser *Us pendens.*This being a harsh doctrine, all the requirements of the law should be strictly complied with in order to bind him. His vendor should be properly in court. This was not the case. She was not notified by summons or otherwise, so far as the record shows, that she had been sued by Biggs. Code, sec. 57.

II. The dismissal of the case in 1873 was the end of the *lis pendens. Trimble*v. *Boothby,*14 Ohio, 109; *Ludlow*v. *Kidd,*3 Ohio, 541.

III. The motion of Biggs to reinstate the cause was made under section 534 of the code, and was grounded mainly on the third subdivision thereof — for mistake and irregularity in obtaining the order and judgment of dismissal.

An order dismissing a case for want of prosecution is a final order, and not a “ mistake or irregularity,” and can not be set aside under that section.

The only authority the court had for its action is found in sections 537 and 538 of the code; and all that the court could do under that motion was, in the first instance, to “ adjudge ” (or, in other words, to render a judgment) that Biggshad a valid cause of action. This was not done. It is an impera*655tive requirement of the statute, and should have been complied with. *Taylor*v. *Fitch,*12 Ohio St. 169; *Hettrick*v. *Wilson,*12 Ohio St. 136.

*Souk*<J* *McMahon,*also for the motion.

J. *A. Jordan,*contra:

I. Section 372 of the code provides that a case may be dismissed if the adverse party fails to appear. The entry does not show that Biggs failed to appear. It simply leaves that to be inferred from the statement that it is dismissed for want of prosecution — a presumption that does not follow, for Biggs might have been present and still failed to prosecute.

The court will presume that evidence was offered unless the contrary appear, and there is nothing to show that evidence was not offered. *Taylor*v. *Fitch,*12 Ohio St. 169.

II. I admit that the literal reading of section 538 of the code is, that the judgment of dismissal should not have been entered until the court had adjudged that there was a valid defense or cause of action.

But this section must be construed with reference to other sections, and the *obiter dictum*of Judge Scott, in 12 Ohio St. 138, is not the law. The reason and justice of it make it absolutely unjust and impractical to have a full hearing by the court before a case may be reinstated and trial of court or jury. 1 Western Law Monthly, 282; *Frazier*v. *Williams,*24 Ohio St. 625.

The authority of the court to vacate its judgments' of a former term, is equitable, and should not be done against right and justice. 3 Ohio St. 445.

There is no justice nor equity in this motion. Its effect is to get the advantage of a judgment dismissing this case without any trial of it.

III. Although the summons to Rachel Long may have called upon her to answer only the petition of Long, her husband, yet by her motion for leave to answer, she voluntarily submitted herself to the jurisdiction of the court and *656obtained leave to answer generally. Under such leave, an answer to tbe cross-petition of Biggs was in order. There was nothing else to answer. Her appearance by the motion cured any defect there may have been in the service. *Eaton*v. Morgan, Tappan, 45; 5 Com. Dig. 295; 2 Handy, 74; *Evans*v. *Iles,*7 Ohio St. 233 ; *Madin*v. *Soper,*11 Ohio St. 503; *Fie*v. *Big Sand Iron Co.,*13 Ohio St. 563; *Stanton*v. *Haverhill,*23 Am. Law Reg. 469; 40 N. H. 551.

White, J.

There are but two questions in this case on which the court deem it necessary to express an opinion.

The first question is, whether the plaintiff in error is a purchaser of the premises in controversy *pendente lite.*

We think he can be regarded in no other light. Prior to the making the purchase by the plaintiff in error, Biggs, the defendant in error, had answered in the case. In his answer, Biggs set up tbe facts showing that Mrs. Long held the property in trust for the firm, and asked that she be made a party to the suit, and that the property be subjected to firm purposes. On his application, the court ordered her to be made a party defendant, and that a summons issue for the purpose. A summons was accordingly issued in the usual form, which was duly served. The record shows that she subsequently applied by her attorney to the court and obtained leave to ansiver. Without, .therefore, deciding that the service of the summons would not have been sufficient to effect her appearance for all the purposes of the suit, it seems plain to us, that by applying for and obtaining leave to answer, her voluntary appearance was effected. The effect of such appearance can not be restricted to the matters averred in the petition. The petition made no reference to her. The matter set up in the answer of Biggs, affecting her title, made her a necessary party to the determination of the controversy. Independent of such matter she had no position in the case; and the leave she obtained to answer can only be understood as referring to such allegations as affected her interest.

The second question is, whether the court erred in setting *657aside, at a subsequent term, the order dismissing the appeal.

Error is claimed to have intervened on two grounds: 1. That there was no irregularity in ordering the dismissal; 2. That, before vacating the order of dismissal, the court ought to have adjudged that there was a valid cause of action.

In regard to the first of these grounds it may be remarked that, in the absence of a showing to the contrary, it will be presumed that sufficient grounds existed to warrant the court in making the order to vacate the former order of dismissal; and that the motion to vacate the last order, made after the trial of the case .on the merits, came too-late.

But we are not prepared to say that the record does not. show, affirmatively, error or irregularity in entering the-order of dismissal.

The appeal had been duly perfected; and the only lachesimputed to Biggs, the appellant, was his failure to prosecute his suit at the term at which the order was made. By section 372 of the code, where the plaintiff fails to appear at the trial, the court may dismiss the action without prejudice ; and Biggs doubtless, as to the matters in issue in the District Court, may be regarded as a plaintiff within the-meaning of this provision. His failure to appear might have justified a trial in his absence, or a dismissal of his. case without prejudice. But the order in the present instance was to dismiss the appeal, the effect of which might have been, if not corrected, to preclude him from suing-again, and to conclude him by the judgment of the court below.

The second alleged ground of error grows out of what we-regard as a misapplication of section 538 of the code. The section is as follows : “ A judgment shall not be vacated on motion or petition, until it is adjudged there is a valid defense to the action in which the judgment is rendered, or, if the plaintiff seeks its vacation, that there is a valid, *658■cause of action; and where a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment.”

This section is to be construed in connection with the ■other sections in the same chapter, and with reference to •the special matter to which it is to be applied.

In the present instance the case had been dismissed with-cut a trial. After it was decided that ther'e was good .ground to vacate the order of dismissal, there could be no .adjudication upon the merits until the case was reinstated, •or again brought before the court. The court could not ■determine the validity of the cause of action without having the parties and the case before it; and the only material effect of the order of the court at the April term, 1874, was to again bring the case before the court for trial on the merits. On such trial, the court found a valid cause of action in favor of Biggs, against whom the irregularity had ¡been committed, and rendered a decree in accordance with .-such finding. This was a compliance with section 588 of the •code in so far as it is applicable.

*Leave refused.*

McIlvaine, O. J., Welch, Rex, and Gilmore, JJ., concurred.