#### Squire, Supt. of Banks, Appellee, *v.*The Guardian Trust Co.; The National City Bank of Cleveland, Exr., et al., Appellants. (Four cases.)

(Nos. 30573, 30574, 30575 and 30576

Decided June 26, 1946.)

*2*Mr. Hugh 8. Jenkins,*attorney general, *Messrs.*Dav-' *is S Young*and *Messrs. Krueger, Gorman é Davis,*for appellee.

*3*Messrs. Thompson, Riñe <£ Flory*and *Mr. Charles W. Sellers,*for appellants The National City Bank of Cleveland, executor of the estate of Francis F. Prentiss, deceased, and May Sanford Hunt and James G. Robertson, executors of the estate of William H. Hunt, deceased.

*Messrs. Squire, Sanders & Dempsey, Mr. R. J. Crawford*and *Mr. Frank R arris on,*for appellants Mary B. Pomerene, executrix of the estate of Atlee Pomerene, deceased, and Guthrie Bicknell, Warren Bicknell, Jr., and The National City Bank of Cleveland, executors of the estate of Warren Bicknell, deceased.

Zimmerman, J.

So far as we can ascertain, the precise question presented by these appeals has not previously been directly passed upon by this court.

It is stated in 4 Corpus Juris Secundum, 233, Section 119:

“An order or decree entered in the original cause reviving or continuing a suit on the. death of a party in favor of or against his personal representative or successor, not being a final order or decree, is not appealable, unless it is within the special provisions of the statute allowing appeals.”

Section 12223-2, General Code, recites in part:

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, * * * is a final order which may be reviewed * *.”

In the opinion of a majority of this court the proceedings in an order of revivor do not assume the aspects of a special proceeding within the meaning of that term as used in Section 12223-2, General Code.' Such order is interlocutory in character and amounts to no more than a substitution of one party for another *4as an incident in the original cause. An order of revivor does not in effect determine the action and prevent a judgment.

As we view the matter, the order of revivor does no more than bring before the court a person who is responsible for costs and who is capable of prosecuting or defending the action. The action in all essential respects remains the same and goes on to final hearing as if the death had not occurred. There is no decision of the court except that the action stand revived and no adjudication as to the rights of the parties; there is merely an order that the representative of the deceased party take the latter’s place in the action. The revivor in no sense represents the commencement of a new action but is simply a phase in the old one made necessary by the death of one of the parties. See *Heirs of Ludlow*v. *Kidd’s Exrs., 3*Ohio, 541, 546.

As supporting the position taken, attention is first directed to the case of *Ware’s Admr.*v. *Wilson,*3 Ky. Opinions, 478. In that case Ware was sued for breach of promise and seduction. The issues were made in the defendant’s lifetime, but he died before trial. Plaintiff, upon notice and service, moved for a revivor which was granted over objection. An appeal from such order of revivor was taken to the Court of Appeals of Kentucky, on the grounds (1) that the action did not survive and (2) that the order of revivor was not made within the time prescribed by law. The court dismissed the appeal for want of jurisdiction, holding that the order of revivor was interlocutory; that it settled no rights in litigation in the original action; that it was not conclusive; and that its validity might be considered and reviewed on final hearing.

In the course of the opinion in the case of *Blum*v. *Pulaski County,*92 Ark., 101, 102, 122 S. W., 109, 110, the following language is used:

*5“The court is of the opinion that the order [of revivor] is not final in the sense that it concludes the rights of the parties to the action, and that the appeal in this case is premature. * * * The error of reviving the action, if error it be, is like any other erroneous ruling of the court, to be reviewed on appeal from the final decree in the cause. * * * here no judgment has ever been rendered which finally concludes the rights of the parties. * * * any error committed by the court during the progress of the proceedings may be corrected on appeal taken when the final decree is entered.”

Lastly, we notice the case of *Mackaye*v. *Mallory*(C. C. A., 2), 24 C. C. A., 420, 79 F., 1, where the court stated in the opinion:

“When a bill of revivor is dismissed, as this would practically determine the original cause by leaving it in a situation in which no further proceedings could be •had in it, doubtless an appeal would lie in favor of the party seeking a revival; but, if the revival is allowed, the order or decree allowing it does not finally dispose of the cause, and can be reviewed, if it becomes necessary, by an appeal from the final decree therein.”

We recognize that there are cases indicating the contrary view but we are satisfied with the soundness and correctness of our conclusion. See *Levin, Admx.,*v. *Muser, Admr.,*107 Neb., 230, 185 N. W., 431, and the cases cited therein.

The prompt and orderly disposal of litigation is an object much to be desired, and the entertainment of appeals from various orders made by the trial court during the progress of the main action is not in pursuance of such object.

In the event judgments should be entered against the appellants upon the hearing of these causes on their merits, appellants may present on appeal the *6question of whether the orders of revivor were duly and properly made.

It follows that the judgments of the Court of Appeals dismissing the appeals should be and hereby are affirmed, and the causes are refnanded to the Court of Common Pleas for further proceedings.

*Judgments affirmed and causes remanded.*

Weygandt, C. J., Bell and Williams, JJ., concur.

Turner, Matthias and Hart, JJ., dissent.

Turner, J.,

dissenting. We dissent for two reasons: In the first place we are of the opinion that the cases present final orders affecting a substantial right made in a special proceeding and, therefore, under the previous decisions of this court, are reviewable by the Court of Appeals.

In the second place we see no reason for failing t6follow the practice in earlier cases.

To discuss these reasons in inverse order: In the only cases where orders respecting revivorship have come to this court they have been disposed of as final orders made in special proceedings.

In the statement of facts in the case of *Carter*v. *Jennings,*24 Ohio St., 182, 184, decided in 1873, it is said:

“The administrators of Jennings object to the revivor in the name of the administrator of the plaintiff, on the ground that no authority is given by law to revive a special proceeding, such as was pending at the death of the.plaintiff.”

Earlier in the statement four grounds of reversal were set out, all of them pertaining to the question of revivor, among them was the identical question which we have here, to wit;

*7“4. That there was no revivor of the same, either absolute or conditional, within one year after the appointment of said administratprs, and that said administrators do not consent to revive the action.”

The question did not come before this court again until 1908 in the case of *Union Savings Bank & Trust Co., Exr.,*v. *Western Union Telegraph Co.,*79 Ohio St., 89, 86 N. E., 478, 128 Am. St. Rep., 675, where the statement of facts discloses: “On full hearing the court of common pleas ordered that the case be revived in the name of The Union Savings Bank & Trust Company, as executor as aforesaid. The circuit court reversed the order of the common pleas court and proceedings thereunder, upon the ground that it erred in ordering the revivor of the action in the name o.f The Union Savings Bank & Trust Company, as executor as aforesaid. This proceeding is prosecuted to reverse the judgment of the circuit court.”

The main case on its merits had been reversed by this court in *Western Union Telegraph Co.*v. *Smith,*64 Ohio St., 106, 59 N. E., 890. The plaintiff below died before the retrial of the case. The death being suggested, a conditional order of revivor was made, service had, hearing had, revivor made absolute, motion for new trial overruled, error to Circuit Court and finally error to this court. Question of final order not raised. This history is disclosed by the file in this court.

Turning now to our first reason: The revivor provisions have been in our statute books since the enactment of the original Code of Civil Procedure (51 Ohio Laws, 123). The question as to what constituted a special proceeding first came up in the case of *William Watson & Co.*v. *Sullivan,*5 Ohio St., 42, where Judge Kennon said at page 44:

“The legislature seems to regard all proceedings, *8not theretofore obtained by suit or action, as a special proceeding, or special statutory remedy; and it would seem to follow, that a provision in the code providing a proceeding, not by action, would be a special proceeding. ’ ’

The case of *William Watson & Co.*v. *Sullivan*held that an order discharging an attachment was an order affecting a substantial right made in a special proceeding which might be reversed pending the action in which the order of attachment was made. The *Watson*v. *Sullivan case*has been followed through the years and instead of being limited has been expanded.

In the case of *Missionary Society of M. E. Church*v. *Ely,*56 Ohio St., 405, 47 N. E., 537, Judge Spear said at page 407:

“Our code does not, as does the code of New York, specify that every remedy which is not an action is a special proceeding, nor do our statutes give any definition of an action or a special proceeding. But wo suppose that any ordinary proceedings in a court of justice, by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention' of a wrong, or the punishment of a public offense, involving the process and pleadings, and ending in a judgment, is an action, while every proceeding other than an action, where a remedy is sought by an original application to a court for a judgment or an order, is a special proceeding.” See, also, 1 American Jurisprudence, 406, Section 4; 1 Corpus Juris Secundum, 1094, Section 42; 4 Corpus Juris Secundum, 233, Section 119; *Harris*v. *Welch,*148 Wis., 441, 134 N. W., 1041; *Voss*v. *Stoll et al., Exrs.,*141 Wis., 267, 124 N. W., 89; *Levin, Admx., v. Muser, Admr., 107*Neb., 230, 185 N. W., 431; *National Council of Knights and Ladies of Security*v. *Weisler,*131 Minn., 365, 155 N. W., 396; *Havill*v. *Havill,*332 Ill., 11, 163 N. E., 428.

*9In the case of *Cincinnati, Sandusky & Cleveland Rd. Co.*v. *Sloan,*31 Ohio St., 1, it was held:

“Whether, under-the code, an order of the court is reviewable or not on error, is to be determined by its substance and effect, without regard to whether it is of a legal or equitable nature.”

Section 11401, General Code, provides:

“If before judgment, one of the parties to an action dies, or his powers as a personal representative cease, but the right of action survives in favor of or against his representatives or successor, the action may be revived, and proceed in the name of such representatives or successor.”

Section 11403, General Code, provides:

“A revivor also may be effected by a conditional order of the court, if made in term, or by a judge thereof, if in vacation, that the action be revived in the name of the representative or successor of the party who died, or whose powers ceased, and proceed in favor of or against him.”

Section 11404, General Code, provides:

“The order may be made on the motion of the adverse party, or of the representative or successor, of the party who died, or whose powers ceased, suggesting his death, or the cessation of his powers, which, with the name and capacities of his representatives or successor, shall be stated in the order.”

Section 11405, General Code, provides:

“If the order is made by consent of the parties, the action' shall stand revived forthwith. When not. made by consent, the .order shall be served upon the party adverse to the party on whose motion it was made, in the same manner and returned within the same time, as a summons. If sufficient cause be not shown against the revivor, the action shall stand revived.”

Section 11410, General Code (51 Ohio Laws, 57), *10which applied in the *Prentiss*and *Pomerene. cases*pro* vided:

“An order to revive an action against the representative or successor of a defendant shall not be made without the consent of such representative or successor, unless within one year from the time it first could have been made.”

That section has now been amended and the section’ applicable to the *Biclmell*and *Hunt cases*is Section 11408, General Code (effective August 22, 1941, 119 Ohio Laws, 419), which provides:

“Upon the death of a defendant in an action wherein the right, or any part of it, survives against his personal representative, the revivor shall be against him. An action for the recovery of money pending at the death of the defendant shall not be revived against the executor or administrator as provided in any of the sections in this subdivision of this chapter, unless written notice of the application or proceedings for such revivor shall be given to the executor or administrator within the time provided for the presentation of claims by creditors in Section 10509-112 of the General Code. The revivor may also be against the heirs or devisees of the defendant or both, when the right of action, or any part of it, survives against them.”

In the case of *Porter, Exr.,*v. *Lerch,*129 Ohio St., 47, 193 N. E., 766, it was held:

“When properly invoked, the remedy of revivor given by Section 11403, General (Jode, is a matter of right and not of discretion.”

We wish to emphasize the words “when properly invoked” occurring in the foregoing syllabus and, further, we wish to emphasize the provision of Section 11401, General Code, that those actions only may be revived which survive in favor of or against the representative or successor and the provisions of former Section 11410, and present Section 11408, General *11Code, as to the time within and conditions upon which a revivor may be had. Both the question of survivor-ship of the causes of action in the main case and the question of whether the revivors were timely made were raised 'in the instant case.

In the case of *Armstrong, Recr.,*v. *Herancourt Brewing Co., 53*Ohio St., 467, 42 N. E., 425, it was held:

“1. The term ‘substantial right,’ as used in Section 6707, Revised Statutes, [Section 12223-2, General Code] involves the idea of a legal right. '

“2. Such right is one which is enforced and protected by law.”

Substantial rights are involved in the instant cases. The rights involved are those which are enforced and protected by law. The questions here are not merely procedural questions, they are questions of substantive right. No plaintiff has a right to have a cause of action revived against the representative of a defendant unless such right is exercised within the time limited by Section 11410, General Code, and no plaintiff has the right to have a cause of action revived which does not survive. The fact that we might at this time be of the opinion that both of these questions should be decided against appellants should not induce us to deny to appellants the right first to have the judgment of the Court of Appeals thereon. Neither of these questions is properly before us and can reach us only after the Court of Appeals has reviewed these cases. The language of three judges hereinafter quoted is appropriate to the situation here.

■ In the case of *Sullivan*v. *Associated Billposters & Distributors of the United States & Canada,*6 F. (2d), 1000, 42 A. L. R., 503, Judge Rogers, speaking for the Circuit Court of Appeals for the Second Circuit, said at page 1002:

“But, before proceeding to the consideration of the real question presented, it is necessary to dispose of *12a preliminary question. Unless the order made in the court below and brought here by writ of error is a ‘final’ order, we have no authority at this time to determine the question of its' validity. But we have no doubt that the order which denied the right to revive the action against the executors of a deceased defendant is a ‘final’ decision and therefore reviewable by this court.”

In the case of *Chilcote, Gdn.,*v. *Hoffman,*97 Ohio St., 98, 119 N. E., 364, L. R. A., 1918D, 575, Judge Donahue said at page 102, respecting abatement and revivor:

“The purpose of this section of our code is; to prevent the useless annoyance, delay, cost and expense of bringing a new action where the cause of action survives. Certainly it was not the legislative intent that a pending action should not abate by the death of a party, where the cause of action does not survive his death. Such a construction would render the statute ridiculous. A pending action cannot survive the cause of action upon which the action itself is predicated.”

The foregoing language of Judge Donahue was approved by Judge Williams in the case of *State, ex rel. Ahrens,*v. *City of Cleveland,*133 Ohio St., 423, 14 N. E. (2d), 351, where he stated at page 425 in discussing the sections of the General Code respecting survivor-ship :

‘ ‘ There is no express provision in Ohio to the effect that an action cannot be revived if the right of action does not survive; but essentially such an implication arises from the language employed in Sections 11401 and 11407. If the right of action does not survive, revivor would be a vain thing, for the substituted relator could show no title in the cause of action and the proceeding would necessarily fail. Since the law does not require the doing of a vain thing the conclusion is in*13evitable that a cause cannot be revived if the right of action does not survive.”

Attempts have been made to distinguish between; a decision of the trial court refusing revivor and a: decision granting revivor. It is our opinion that there is no difference in principle. They are both final orders in respect of survivorship and both made in special proceedings.

In 2 American Jurisprudence, 903, Section 92, it i&, said:

“An order granting or denying the right to revive an action is a final decision and hence reviewable.”

Matthias and Hart, JJ., concur in the foregoing dissenting opinion.