ON PETITION FOR REHEARING. Appellee calls attention to the fact that the record shows that Dimitri Economoff, appellant's attorney in the original action, appeared in the Lake Superior Court on the day the 10, 11. motion for a change of venue was sustained, and assumes this was an appearance by appellant. This contention is based upon the assumption that Economoff was an attorney for appellant in the instant case. While Economoff was the attorney for appellant in the original action, there is nothing to indicate that he acted for appellant in the instant case or that he appeared as an attorney for appellant. The record simply shows that on the day the change of venue was granted, Economoff filed his affidavit giving his version of the facts which led to the failure to file an answer in the original action wherein he had appeared as the attorney for the defendant in that case, and plaintiff in the instant case. Appellant's attorneys in this cause are Sheehan Lyddick. They are the only attorneys for appellant appearing of record in this cause. A plaintiff is always in *Page 693 court so as to give the court jurisdiction to rule upon motions, demurrers, etc., even though the plaintiff is not actually present in person or by attorney. But where the court, without any statutory authority thereto, sustains a motion for a change of venue and sends the cause to another county, and the record does not show the opposite party was in court in person or by attorney or had knowledge that such a motion had been filed, and where there is no showing that the party learned of such action during the term, it will not be too late for such party, on his first appearance in the court to which the cause was sent on change of venue to file a motion to certify the cause back to the county from which the change was improperly taken.
The petition for a rehearing is denied.
But, in view of the fact that a long period of time has elapsed since the judgment in the original action was rendered against appellant, that changes may have taken place in his 12. financial condition, and that conveyances of real estate may have been or may be made which would render any judgment that might hereafter be rendered against appellant of no value, the mandate herein is modified; and the Lake Superior Court No. 3, in case it determines that appellant should be permitted to make a defense in the original action, shall direct that the judgment heretofore rendered in favor of appellee shall stand as security for any judgment hereafter rendered therein in favor of appellee, in order that the lien and priority of the judgment heretofore rendered on default shall not be lost or impaired. *Page 694