#### Jackson et al., Appellees, *v.*Marshall et al*.,*Appellants.

(No. 1919

— Decided April 24,-1947.)

*Messrs. Eyeps, Leyland &*Patterson, for appellees.

*Mr. Joseph N. McGrath,*for appellants.

Wiseman, P. J.

‘This is an appeal on questions of law from the judgment of the Common Pleas Court •of Montgomery county, Ohio, reviving a judgment *281against the defendants, appellants herein, Gale B. Maury and Nettie B. Maury. The error assigned is that the order reviving the judgment is contrary to law.

The action was originally brought in 1932 by Davis S. Jackson and Margaret K. Jackson against Henrietta F. Marshall and others, in which action there was sought a money judgment and foreclosure of a mortgage on a certain tract of land which had been subdivided and platted and the lots sold to various persons, all of whom were made parties defendant. The defendants,. Gale R. Maury and Nettie B. Maury, purchased four lots from the Marshalls, and in the deed, as part consideration, the Maurys assumed and agreed to pay $1,000 of the bla’nket mortgage and the taxes and assessments. Judgment was taken for money due, and the mortgage was ordered' foreclosed. A special master commissioner was appointed to conduct the sale of all the lots in question. Only four lots were sold; the four lots owned by the Maurys and other lots owned by other persons were not sold for the want of bidders. No further effort was made to effect a sale. The money judgment became dormant.

Subsequently the plaintiff, ""Margaret K. Jackson, died, leaving the plaintiff, Davis S. Jackson, as her surviving spouse and sole heir-at-law, who died testate in *1944.*The Third National Bank & Trust Company of Dayton, Ohio, was appointed executor of the last will and testament of Davis S. Jackson.

The record shows that Gale B. Maury was adjudged a bankrupt and received his discharge in bankruptcy in August 1940. The trial court found that the trustee in bankruptcy recognized the mortgage lien of the plaintiffs and because of the lien and the taxes due on the lots, the'trustee disclaimed all interest in the real estate. There is no bill of exceptions before ,the court. In the absence of a bill of exceptions this court is *282required to hold that the finding of the trial court was properly supported by the facts.

Later the four lots owned by the Maurys were sold for delinquent taxes. The sum of $1,349.51 was realized from the tax sale, over and above the amount due for taxes.

On August 5, 1946, The Third National Bank & Trust Company, as executor of the estate of Davis S. Jackson, filed a conditional order of revivor of the judgment. In this order it is first recited that The Third National Bank & Trust Company suggests the deaths of Margaret K. Jackson and Davis S. Jackson, and that it has been appointed and is still acting as the executor of the last will and testament of Davis S. Jackson. The court thereupon ordered The Third National Bank'& Trust Company as such executor substituted as plaintiff in the judgment aforesaid. Then follows a conditional order' of revivor of the judgment against the defendants, Gale R. Maury and Nettie B. Maury. The Maurys answered and set up the discharge in bankruptcy, that the plaintiffs should have sold the property under the order of sale in the foreclosure suit, and that the plaintiffs should be required to exhaust the real property before obtaining an order reviving a personal judgment.

The trial court ordered the judgment revived against Nettie B. Maury for the full amount due, to wit, $2,011.25. With respect to the defendant Gale R. Maury, the trial court revived the judgment only to the extent of the amount of money realized from the tax sale, to wit, $1,349.51, as that amount was covered by the lien of the plaintiffs’ mortgage. The trial court directed the amount to be paid to the executor of the estate of Davis S. Jackson, and further ordered that “upon application of said amount to plaintiffs’ claim, *283the judgment as to the said defendant, Gale R. Maury,, will be released.”

Thus it appears the trial.court recognized that the discharge in bankruptcy released the defendant Gale R. Maury from any personal liability under the judgment. The mortgage lien, held by the plaintiffs, also-was recognized and the court very properly ordered the amount realized from the tas sale applied in satisfaction of the lien. That was the extent of the liability of the defendant Gale R. Maury. The trial court so held and ordered the-.judgment released against Gale R. Maury upon the payment of the $1,349.51..

The defendants contend that the court was without authority to substitute The Third National Bank & Trust Company, executor under the will of Davis S. Jackson, as party plaintiff, as more than one year had elapsed after the death of Davis S. Jackson.

Section 11411, General Code, in part, provides:

“An order to revive an action in the name of the representative or successor of a plaintiff may be made forthwith, but shall not be made, of right, without the consent of the defendant, after the expiration of one year from the time it might first have been made.”

It is conceded that the order of revivor was filed more than one year after the time it might first have been made, and that the defendant did not consent thereto. It has been held that the provisions of Section 11411, General Code, are not exclusive. Regardless of the provisions of Section 11411, General Code, the court has discretion, after the period of one year has expired, to revive the action in the name of the personal representative of the deceased plaintiff. *Pavey*v. *Pavey,*30 Ohio St., 600; *Black*v. *Hill,*29 Ohio St., 86; *Barr*v. *Chapman,*11 C. C., 196, 5 C. D., 46. See, also, *Tuttle*v. *King,*13 N. P. (N. S.), 547, 30 O. D. (N. P.), 647, and *Morris*v. *Schmidt,*8 N. P. (N. S.), 215, 19 O. D. (N. P.), 469.

*284Thus we find the law to be that upon the suggestion of the death of Davis S. Jackson the court had authority to substitute the executor of his estate as a party plaintiff, under the provisions of Section 11261 or Section 11402, General Code.

The order substituting the executor as a party plaintiff, although in the same entry in which the court made a conditional order of revivor of the judgment, was a complete and final order in itself. It was- not conditional, but final. - The better practice would have been to have filed a separate order; however, the fact that both orders were part of the same entry does not change the legal effect of the action of the court. The court very properly'exercised its discretion in ordering the substitution.

Since the rights of innocent parties have not intervened, we are of the opinion that the plaintiffs cannot be charged with laches in failing to sell the property under the order of salé, and in permitting the property to be sold at tax sal,e. The regularity and the validity of the tax sale are not in question.

The defendants, in their supplemental brief, raise a question which would have been a defense in the original action. Where the court rendering the judgment had jurisdiction of the parties and subject matter, a defense ydiich could have been set up in the original action cannot be set up in a proceeding to revive the judgment. We cannot in this proceeding recognize such a defense. 23 Ohio Jurisprudence, 1103, Section 929.

As we find no prejudicial error in the record, the judgment of the trial court is affirmed.

*Judgment affirmed.*

*■*Miller and Hornbeck, JJ., concur.