
    George Taylor v. George W. Leith.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Wyandot county, dismissing appeal.
    The action was brought by the defendant in error, who* was plaintiff below, against the plaintiff in error, defendant. below, to recover damages for a breach of the covenants of warranty in a deed conveying the “ N. E. qr. of the N. E. qr. of sec. 28, etc.” The answer impliedly admitted the facts stated in the petition, and by way of cross-petition set up the fact that there had been a mutual mistake of the parties in the description of the land, and that the mutual intention of the parties was that “ the N. W. qr. of the N. E. qr. of sec. 28, etc.,” should have been conveyed. The defendant brought into court a deed correcting the alleged mistake, and asked the court to reform the deed, and that the plaintiff be restrained from proceeding with his action until the matters thus set up were heard. The reply put the allegations of the cross-petition in issue. The cause was submitted to the court, the issues found for the plaintiff, and judgment entered in his favor. The defendant gave notice, and perfected his appeal to the District Court. In the latter court, on motion of the plaintiff, the appeal was dismissed on the ground that the action was not one that was appealable.
    This is a motion for leave to file a petition in error to reverse the judgment dismissing the appeal.
    
      G. R. Mott, for the motion,
    cited, Massie v. Stratford, 17 Ohio St. 596.
    
      John I). Sears, contra,
    
    cited, code, sec. '263 ; S. & S. 589; 21 Ohio St. 277 ; 17 lb. 72 ; 23 lb. 579 ; 20 lb. 76.
   By the Court.

The only issues tried were those made by the cross-petition and reply ; and from the decree rendered against the defendant, he could properly appeal. Massie v. Stratford, 17 Ohio St. 596, approved and followed.

Motion granted, judgment of District Court reversed, and cause remanded for further proceedings.  