delivered the opinion of the court.
The party’s appearance in court and motion to set aside the order allowing the cause to be continued against him in the name of the deceased plaintiff’s successor, was a sufficient appearance to have justified the court, upon setting that order aside, to require the party to show cause against the proposed substitution, and upon his failure to do so, to have renewed the order without any scire facias to bring him into court. When, therefore, the order was in effect set aside here, and the cause remanded for further proceedings, the court was then at liberty to proceed in the matter without a scire facias, the party being already in court — a party to this proceeding by his own voluntary appearance — and the proceeding to have the cause continued in the name of the present plaintiff may be considered as having been commenced on the day the party made his motion in court to set aside the order, and so is within the time allowed by the statute for that purpose.
The judgment is affirmed.