John Cain filed suit in the Cuyahoga Common Pleas for alleged personal injuries received by being struck by a negligently driven truck, and named the defendant as Carmino Cesa. The sheriff’s return shows service made at the usual place of residence of the defendant.

Judgment was rendered by default for $3500 and a writ of execution issued thereon was returned unsatisfied. Subsequently the court purporting to act on motion of Cain (no such motion appearing filed or among the original papers in the case) found Carmino Cesta to have been sued by the wrong name, but personally served with summons and made an order substituting his name for that of Domina Cesa wherever the latter appeared in the petition and summons and that the name of Carmino Cesa may be used for said defendant in all further proceedings in the action.

It is alleged that the substitution was not only ex parte but wholly without any notice to Carmino Cesa.

After discovery by Carmino Cesa of said order purporting to substitute him as defendant to said judgment, he filed a motion to vacate said order and entered his appearance solely for the purpose of said motion challenging the jurisdiction of the court over his person to make said substitution. The motion was filed at the same term of court at which said substitution was made and upon the overruling of the motion a petition in error was filed within 18 days thereafter.

Cain, during the pendancy of the error proceeding, filed a motion to dismiss the same on the ground that the court was without jurisdiction for the reason that said error proceeding was not filed within 70 days of the order of substitution. The Court of Appeals sustained this motion.

Cesa, in the Supreme Court, contends:

1. That the Appeals erred in dismissing said error proceeding.

2. That the Common Pleas erred in making its order of substitution.

3. That error was committed in overruling the motion to vacate the order of substitution.