
    The Cleveland Gas Light and Coke Co. v. James Duffy.
    Motion for leave to file a petition in error.
    The C. G. L. & C. Co., filed a petition in error, in the District Court, to reverse a judgment recovered by him against the company, in the Common Pleas, and when the case in error was called, moved to dismiss its petition. This being objected to by Duffy, the motion was overruled, and the judgment of the Common Pleas affirmed. And it is now insisted that in refusing to dismiss the petition, and in hearing the cause, the court erred.
    
      Estep $ Burke, for the motion, cited Code, sec. 372, S. & C. 1049,1050.
    
      Heisleys $ Green, contra :
    Section 372 of the code refers to ordinary actions only, and has no reference to proceedings in error.
    If a plaintiff' in error cau thus dismiss, he can evade the penalty of his undertaking in error, after it has operated as a supersedeas, the condition of such undertaking being merely payment by him if the judgment’ sought to be reversed be affirmed.
    
    The act of April 5, 1856 (S. & C. 1170), first gave a plaintiff in error the right to dismiss his proceeding, but this was taken away by the act of April 3, 1862. S. & S. 601. If the last-named act be construed as merely taking away the right to dismiss in vacation, there is no reason for limiting the exercise of the right to term time, unless it be in order that the court may exercise its discretion in the matter. As to this power of the court, see 1 Troubat & Haly’s Practice, 450; Pourr v. Frick, 2 Grant’s Cases; Conner v. Drake, 15 Ohio, 170; Squiers v. Burgess, 31 Vt. 466; 18 How. (U. S.) 241; 2 Daniel’s Pr. 1644; 11 Pet. 55.
   By the Court.

We see no error in this. It is in the discretion of the court, whether it will dismiss a petition in error without the consent of both parties. Were it otherwise, great injustice might be done to the defendant, by delaying the enforcement of his judgment, and escaping the penalty imposed by the law for vexatious delay.

Motion overruled.

If a plaintiff in error has this right, he can harass the defendant in error by repeated proceedings, dismissing each when called for hearing.  