
    *Samuel Hill v. The Supervisor of Road District No. 6, of Stonecreek Township, Clermont County.
    Error to the district court of Clermont county.
    Swing, Penn & Johnson, for plaintiff in error
    
      Lewis & Griffith, for defendant in error.
   J. R. Swan, C. J.

1. Where the court gave leave to file a petition within sixty days, and, in default, ordered that the cause stand dismissed, and a petition was filed two days after the expiration of the .sixty days, the defendant, after answer, trial, and judgment, can not, on error, insist on the dismissal. The order of dismissal must be deemed vacated by the subsequent action of the court and parties.

2. Whore an amendment is to be made by striking out or adding .an allegation to a petition, it can not be done by mutilating or altering the files. The party amending should either file a new petition or answer, or file a statement of the amendment, and designate by reference where the new matter is to be • inserted, or what is to be considered as stricken out.

3. Where the plaintiff obtained leave to amend a petition so as to state therein that the cause came by appeal from a justice, and the record shows that the original petition contains that allegation, the court on error will presume, in the absence of any express statement of fact to the contrary, that the petition contained, when filed, •all that it purports on its face and in the record to contain.

4. Although the language of pleadings under the code will be construed according to its popular and ordinary meaning, that meaning must conform substantially to the proof on the trial. Proof that the defendant erected a %tone fence fifteen rods from a road, causing water to flow upon and obstruct the road, can not be received where the cause of action alleged in the petition, is that defendant erected a fence across the road, thereby •obstructing it. The petition should be amended in such case, if the testimony is objected to by the defendant, whether he would be mislead or not by the variance.

5. A suit brought in case, before a justice, for obstructing a highWay, may, on appeal, be proceeded in as a civil action under tbe code.

6. Where, in an action before a justice the plaintiff was described as “ A B, supervisor of road district No. 6, Stonecreek township, Clermont county,” on appeal, the supervisor for the time being, may file his petition as “the supervisor of road district No. 6,” etc.

Judgment accordingly.

Brinkerhoee, Scott, Sutliee, and Peck, JJ., concurred.  