
    Jackson Hanover, Administrator of Benjamin W. Pratt, deceased, v. Jared Sperry et al.
    1. Where a party to a judgment dies before the commencement of proceedings in error, one who becomes a privy to the judgment by operation of law, may file a petition in error without being first made a party by revivor.
    2. In such case, the facts, upon which the law operates in creating the privity, must be averred in .the petition in error; and the facts so pleaded are issuable and must be verified as required by section 46, chapter 7, division 2, title 1, of the Code of 1878. (75 Ohio L. 624.)
    Petition in error. Motion to strike petition in error from the files for want of verification.
    At the June term, 1879, of the District Court of Licking county, a decree was rendered in favor of defendant in error, Jared Sperry, and against Benjamin W. Pratt, intestate-of plaintiff in error, then in full life, which, among other things, directed Pratt to surrender certain promissory notes into the hands of the court to be canceled. Subsequent to the rendition of the decree, Pratt died, and the plaintiff in error was duly appointed and qualified as administrator of his estate.
    The petition in error, now pending, to reverse the decree-of the district court, was filed by the plaintiff in error, and contains among other things, averments of the death of ;Pratt since the rendition of the decree, and the appointment and qualification of the plaintiff in error as administrator, etc.
    .The petition in error is not verified by affidavit, and the defendant in error seeks by this motion to strike the petition from the files for want of verification.
    
      J. Buckingham, for the motion.
    
      Smythe § Sprague, contra.
   McLlvaine, J.

In general, a petition in error must be prosecuted by a party to the record and to the judgment •sought to be reversed; but if such party die before error is prosecuted, his administrator or executor, or heir, according to the nature of the subject-matter of the judgment, who becomes privy thereto by operation of law, may commence and prosecute a proceeding in error, without first being made a party to the judgment by revivor or otherwise. Hammond v. Hammond, 21 Ohio St. 620. 8 Cowen, 333, 346. 3 Bacon’s Ab. 330.

But where a person not a party to the judgment prosecutes a proceeding in error, he must, by proper averments in the petition in error, show the facts, under which he •claims to be privy to the judgment. Swan’s Pr. & Pre. 1141. The principal question for determination on this motion is, must such a petition in error be verified under section 46, chapter 7, division 2 of the code (75 Ohio L. 624.)

This section provides, “ every pleading and motion must be subscribed by the party or his attorney, and every pleadings of fact . . . must be verified by the affidavit of the party, his agent or attorney.” The terms here used are certainly broad enough to embrace petitions in error, when such petitions contain issuable averments of facts, as in the case before us.

It is claimed, however, that the provision above quoted .applies only to pleadings in original actions, and not to pleadings in error, notwithstanding its general terms, because section 10, chapter 1, title 4 (75 Ohio L. 805), which provides that proceedings in error shall be by petition in error, does not require a verification of the petition, and that ever since the adoption of the civil code, the practice has-been to omit the verification to petitions in error.

Where the petition in error is filed by a party to the-judgment and contains simply an assignment of errors upon a record which is exhibited and proves itself, such petition is not a pleading of fact, but tenders issues of law mérely; and we have no intention to disturb the practice-in such cases. But where the petition in error contains allegations of material facts, not appearing in the record and going to the right of the plaintiff to prosecute the proceeding, we can find no sufficent reason for holding that such petition is not a pleading of fact within the rule requiring-verification.

Motion granted.  