The gist of the motion in this case is to dismiss the petition in error because plaintiff in error has not made his co-defendant below a party to the proceedings in error. If Smetters vs Raney, 14 OS. 287, were in full force and effect the motion would have to be sustained. The Supreme Court however, in Sniders Executors vs Young, 72 OS. 494, has expressly overruled the second and third paragraphs of the syllabus in the Smetters case, and in Clark *62vs Clark, 110 OS. 644, on page 658, has reiterated its position. In the Snider case it was held that where such a defect as that now complained of, appears, the proceedings in error may be amended and the omitted defendant in error be brought into the record.

To the end that the case may not be disposed of upon a technicality and without a hearing, leave is given to the plaintiff in error to file an amendment to its petition in error by December 15. If this is done and service is had upon Kohlman an entry may be placed on record showing that the motion to dismiss the petition in error is overruled. If the required amendment is not made as above suggested within the time prescribed the motion will be sustained.