DISSENTING OPINION
By BARNES, PJ.It is regrettable that I am unable to agree with my associates in the determination of this cause. •
In order to make my position understandable I find it necessary to present a rather full statement.
As stated in the original opinion the action originated in the Probate Court on exceptions to the final account of the administrator. The transcript of the docket and journal entries in the Probate Court disclose that one of the heirs, John J. Ross, filed the first exception. Afterwards another heir, Harry J. Ross filed exceptions. Later, upon motion, the two exceptions were consolidated. None of the other eight heirs filed exceptions. In the Probate Court the exceptions were overruled. An appeal was taken by the ex-ceptor, John J. Ross, to the Common Pleas Court. He perfected his appeal by giving the requisite bond.
In the Common Pleas Court we find the following entry:
“This matter coming on to be heard upon the motion of Henry S. Hurley, Elizabeth Miller, Ida Albaugh, Ella Nicodemus, *511Mary C. Knoop, Emma Hahn, et al, and the evidence, the court finds that by a written agreement between the above named heirs and John J. Boss, that at the time, the said John J. Ross, filed his exceptions and amended exceptions, to the account of Wade Shilling, administrator of Charles W. Clark, deceased, in the Probate Court, oE Miami County, Ohio, that he also represented and filed the exceptions for the above named heirs, and that said exceptions and amended exceptions, became the exceptions of the above- named heirs.”
(Emphasis mine).
It will be noted that the plaintiff in error in the present proceeding in our court is not named as one being joined with John J. Ross as an exceptor. In our judgment the words “et al” are meaningless unless properly connected up so as to bring in Clarence Miller as a party.
On hearing in the Common Pleas Court the exceptions were sustained and thereafter the administrator filed petition in error in the Court of Appeals naming' all heirs including Clarence Miller as defendants in error. This is the first instance in which we find the name Clarence Miller mentioned in any of the litigation. It was not within the power of the administrator, through petition in error, to draw into the case an heir who was not previously a party.
The attempt so to do was a nullity.
When the case was heard in our court, we found prejudicial error in the trial court’s refusal to permit certain evidence to be introduced and remanded the cause to the Court of Common Pleas for further hearing. The journal entry in our court, through inadvertence recites that all of the ten heirs were appellants from the Probate Court of Miami County, Ohio. I say this is air inadvertence for the reason that the ■transcript of docket and journal entries disclase that Clarence Miller and some others were not named as appellants. The case in our court was heard upon the record of the trial court and the same transcript of docket and journal entries as are presented in the present hearing. This recital in the journal entry naming Clarence Miller is harmless since it is nothing more than a recital and can have no more effect than had the Queen of Sheba been mentioned as an appellant. Clarence Miller not having in fact been an exceptor or an appellant will not be bound by anv order made in any court. It is fundamental that before any judgment can be entered, against anyone, he must be in court either by entry of appearance, through process or filing of pleading.
When the case went back to the Common Pleas Court, upon hearing, the exceptions were overruled and the appeal dismissed. The pertinent portion of this entry rends as follows:
“And that said cause be and the same is hereby dismissed at the cost of said John J. Ross and all other exceptors and parties herein taxed at $.......”
Upon this judgment and none other execution was issued to the sheriff of Darke County seeking to make from the property of Clarence Miller, and none other, all the costs made in all the courts from the time of the filing of the original exceptions by John J. Ross until the final decision dismissing the exceptions.
It must be noted that the judgment for costs does not mention Clarence Mill.r by name. It says “John J. Ross and all other exceptors and parties herein.”
Following the issuing of execution Clarence Miller through his counsel filed motion to set aside and quash the execution on the ground that no judgment had been entered against him and the further claimed ground that he was not an exceptor. The Common Pleas Court overruled this motion to quash and the cause is now before this court challenging the correctness of the ruling in the court below. The question of fact is uncontroverted that no judgment has been entered against Clarence Miller by name. It is suggested that he may be included in the “et al” mentioned in the journal entry directing that certain heirs on their application be joined as ex-ceptors. With equal logic it may be said that he may not be included in the “et al.” If in fact, he is included in the “et al” that might be a predicate in a proper proceeding for entering judgment, but it does not-constitute a judgment.- I have no quarrel with the citation from Freeman on Judgments, Volume 1, page 139 quoted in full as follows:
“the parties may be designated generally as the plaintiffs or the defendants, provided a reference to the caption or to the pleadings, process and proceedings in the *512action makes certain the names of the parties thus designated.”
The difficulty is that the facts in the instant case do not fit.
The majority opinion also hold to the view that since no bill of exceptions is filed, this court must hold against the plaintiff in error on the factual question. The query at once arises as to wh°t is the pertinent factual question and the answer obviously is, was there a judgment against Clarence Miller. I am unwilling to concede that oh the motion to quash the execution, the trial court could predicate his finding on a possible determination that there should have been a judgment against Clarence Miller.
Even if this query would be pertinent, I think that the transcript of docket and journal entries disclose that the trial court heard and determined the motion to quash on the transcript of the docket and journal entries and no other evidence. It is true that the entry recites that the court made its findings upon the pleadings, evidence, arguments and brief of counsel, but- previous entries disclose that counsel agreed to submit the motion without additional testimony. Counsel in drafting the entry incorrectly use the word “evidence” as referring to the previous record instead of correctly using the terms “transcript of docket and journal entries.”
However, in my judgment, this becomes immaterial for the reasons above stated that any evidence supporting the conclusion that the evidence should have been returned against Clarence Miller was not properly before the court. In the execution purported to be issued upon a judgment, the only pertinent inquiry is was .there a judgment.
I am also inclined to the view that even if the proceedings and judgment were in all' respects regular against the plaintiff in error, yet no order of execution should issue from the Court of Common Pleas. §11311 GC prescribes the procedure on appeal from the Probate Court. This section reads as follows:
“Upon the decision of a cause, appealed to the Court of Common Pleas, the clerk shall make out an authenticated transcript of the order, judgment and' proceedings of such court therein, and file it with the probate judge, who shall record it, and the proceedings thereafter be the same as if such order, judgment, and proceedings had been had in the Probate Court.”
I am constrained to the view that the judgment- of the trial court should be reversed.