#### Foresman et al. v. C. L. Haag.

1. Proceedings in error under the code may be revived against the representatives of a deceased party, notwithstanding more than a year has elapsed since the death of such party; and such revivor may be by conditional order, instead of by *scire facias*as required under the former practice. *Black*v. *Hill*(29 Ohio St. 86), and *Pavey*v. *Pamy*(80 Ohio St. 600), approved and followed.

2. The revivor may be had in this court although the party died before the reservation of the case by the district court.

3. The case in error must be decided upon the record, and the representatives of a deceased party stand in the shoes of their ancestor. On the question of revivor, the merits of the action are not the subject of inquiry.

Error to tbe Court of Common Pleas of Cuyahoga County. Reserved in tbe District Court.

This case was decided at tbe last term, and tbe decision is reported in 36 Ohio St. 102.

The judgment in tbe case not having been entered, it now comes before the court for tbe entry of sucb judgment.

On the oral argument of tbe case, tbe death of tbe defendant in error was suggested by counsel who bad represented tbe defendant in error, and it was agreed that tbe argument of tbe casé should not be delayed on account of sucb death. The case was accordingly argued and submitted to tbe court, upon tbe understanding that tbe necessary steps would be taken to make tbe legal representatives of tbe defendant parties.

On February 8, of tbe present term, on motion of tbe plaintiffs in error, a conditional order was entered against said legal representatives requiring them to show cause why tbe proceedings in error should not be revived against them and proceed to final judgment in their names.

This order was duly served. Three grounds are relied upon in showing cause by tbe legal representatives why tbe order should not be made absolute or tbe proceedings revived against them. These grounds are in substance as follows;

1. That more than one year had elapsed after tbe death of *144the defendant in error, before any steps were taken to revive the proceedings against his representatives or to make them parties to the proceedings in error.

2. That the defendant in error died pending the proceedings in error in the district court and before the reservation of the cause to this court.

3. That the defendant in error derived title to the lands in controversy from the purchaser at the guardians’ sale. That said purchaser had paid the purchase money and the defendant in error had paid all taxes and assessments levied on said lands subsequently to said sale, no part of which had the plaintiffs offered to refund; nor had they set up any claim to said lands until the bringing of the original action.

Two of the heirs of the original defendant in error, Christian L. ITaag, are minors who show cause against the order by their guardian *ad litem*duly appointed for the purpose.

The judgment under review was rendered in the court of coihmon pleas at the January term, 1875. The petition in error was filed in the district court by the plaintiffs in error on June 14, 1875, and the summons in error was issued on the same day and duly served on the defendant in error, Christian L. Haag. At the September term, 1876, of the district court the case in error came on to be heard, and the following entry was made in that court: “ This cause came on to be heal’d and was argued by counsel. Whereupon the court find that the questions which arise in said cause are important and difficult, and upon motion of the plaintiffs do order that the causebe reserved and sent to the supreme court for its decision.”

It now appears that Christian L. Haag, the defendant in error, died on September 5, 1875, before the case was ordered to be reserved by the district court; but that such death was unknown to the plaintiffs in error or their counsel, until it was suggested at the hearing in this court.

A motion is also made on behalf of the legal representatives to remand the cause to the district court as Christian L. Haag, the defendant in error, died before the case was reserved to this court.

*145
      *S.*Burke, *P. C. Smith*and *W. W. Andrews,*for plaintiff in error.

*R. P. Ranney,*for defendant in error.

"White, J.

The main questions now before the court are: 1. Whether the proceedings in error can be revived against the legal representatives of the defendant in error, by conditional order—the mode adopted by the plaintiffs in error : and, 2. If this question is answered in the affirmative, whether the revivor can be had in this court, or must the case be remanded to the district court for the purpose.

The first question is answered in the affirmative by *Black*v. *Hill*(29 Ohio St. 86), and *Pavey*v. Pavey, (30 Ohio St. 600). In these cases the court applied the power given by section 39 of the code in original actions, by analogy, to proceedings in error: and although the section has been modified by the Revised Statutes, the modification need not here be noticed, as the present proceeding in error was pending at the time of the revision and is therefore not affected by it.

At common law a writ of error in no case abated by the death of the defendant in error. If the death occurred after joinder in error the case proceeded to judgment the same as if the defendant were living, and his representatives were made parties to the judgment by *scire facias*/ if the death happened before joinder in error, his representatives could be required to join in error by like proceeding. 2 Tidd's Prac. 1163; *Spark*v. Vangundy, 3 Ohio, 307; *Delaplaine*v. Bergen, 7 Hill, 591; *Schuchardt*v. Remiers, 28 How. Pr. 514; *Walpole*v. Smith, 4 Blackf. 115.

In *Green*v. *Watkins*(6 Wheat. 263) it is said by the court, *“*There is no doubt' that the heir or privy in estate, who is injured by an erroneous judgment, may prosecute a writ of error to reverse it. And there seems no good reason why, in the case of the death of his ancestor, pending proceedings, lie may not be admitted to become a party, or be cited to become a party, to pursue or defend the writ, in the same manner as in personal actions. The death of neither party produces any change in the condition of the cause, or in the rights of the parties. It *146would seem reasonable, therefore, that the suit should proceed, and not be dismissed or abated.” The supreme court of the United States adopted a rule to govern the practice in such cases, which is found in the volume last cited.

Analogous principles governed in courts of equity where a party died pending a cause under review on error, in the court of appeal. *Rogers*v. Patterson, 4 Paige, 409, 413.

The writ of *scire faeias*has not been abolished in this state ; and, doubtless, may still be resorted to when necessary for the purposes of justice. But the conditional order provided for in the code for the revivor of *actions,*contains the substance of a writ of *scire facias*for such purpose, and is a more convenient remedy, and, as was held in *Black*v. *Hill,*and *Pavey*v. Pavey, *supra,*may be resorted to for the revivor of proceedings in eiTor against the representatives of a deceased party.

We see no l-eason for remanding the case to the district court. This court has the same control over the case and the issuing of process as the district court would have had if the case had not been reserved. The order of reservation was not void; but operated to transfer the case to this court as it stood in the district court. *Grant*v. *Ludlow’s Admr.,*8 Ohio St. 31. And as the district court could have revived the proceeding in error against the representatives of the deceased defendant, the same may be done in this court.

The remaining question is, whether the facts alleged with reference to the payment of the purchase-money, taxes and assessments, constitute cause against the revivor. Whatever effect these facts may have upon the prosecution of the original action, they can have no bearing upon the question of revivor. The case in-error must be decided upon the record, and the representatives of the deceased stand in the shoes of their ancestor. On the proceeding to revive, the merits of the action are not the subject of inquiry.

The order of revivor is made absolute, and judgment will be entered as heretofore announced.