Epitomized Opinion

In an action by Johnson against Hubbard on ah account in which Hubbard set up a counter claim, judgment was rendered- in favor of Hubbard in the sum of $1288.93. Hubbard having died in the meantime, the executor, H. W. Fraser, entered appearance in the court of appeals to the petition in error, the caption of which shows the defendant in error to be Hubbard. Fraser now moves the court to amend the petition in error striking therefrom the name of Hubbard as defendant, and adding in lieu thereof the name of Harold W. Fraser, executor of Wm. T. Hubbard deceased. The application was resisted on the ground that the time within which a new. party can be brought in has long since elapsed. In granting the motion the court held:

1. The proceeding appears to be directly within the ruling in Akron & C. J. R. v. Weedman, 83 OS. 88, where the right to make the amendment was accorded notwithstanding the lapse of time.

2. The amendment is not in reality the addition of a new party but the correction of an error in the caption.

3. The court follows the decision of Vance *27v. Davis, 107 OS. 577, and declines.to follow, the ease of Ricard v. Porter, 15 CC., NS. 397; 34 OGC. 530.