
    Manasses Huber v. The Executors of Abraham Cherry, deceased.
    'Where a party entitled to a second trial, without entering his demand therefor upon the journal, takes the cause to the district court by appeal, it is not error in that court, upon dismissing the appeal for want of jurisdiction, to refuse to remand the cause for a second trial.
    Motion for leave to file petition in error.
    The original action in the common pleas was one in which the parties were entitled to a second trial, and not to an appeal. When judgment was rendered, the plaintiff in error gave notice of his intention to take an appeal, which appeal he afterward perfected; but he did not enter upon the journal any notice of demand for a second trial. The district court dismissed the appeal, for want of jurisdiction, and refused to remand the cause for second trial; which refusal is assigned for error.
    
      Stanton & Allison, and Kernan, for the motion.
    
      W. 3. West, contra.
   *By the Court.

We think the court did not err in this •¡refusal. A party can net have a second trial unless he enters his notice of demand upon the journal. The provision in the 6th section of the act of 31st March, 1859 (S. & 0. 1159), for remanding causes for second trial, upon dismissal of the appeal, applies only to cases where a demand for second trial has been disallowed in the common pleas. The object was to relieve against the mistake of the court, and not against the mistake or willful act or omission of the party. Any other construction would put it in the power of a party vexatiously to delay the final adjudiction of the action.

Leave refused.  