
    The Valley Railway Company v. Henry E. Bohm, Administrator of Bernhard Bohm.
    "Where the defendant, in a proceeding under the statute to condemn land for public use, dies during the pendency of the proceeding, or during the pendency of a petition in error to reverse the same, the revivor of the proceeding must be had in the name of the heirs or devisees, and not of the administrator of the deceased
    Motion for leave to file a petition in error to the District Court of Cuyahoga county.
    
      This was a petition in error, filed in the court of common pleas against the Valley Railway Company, to reverse the judgment of the probate court rendered in a'proceeding by the company to condemn and appropriate the land of Bohm for the use of the company’s road. Pending the petition in error, Bohm died, and thereupon the cause was revived; by making the administrator of Bohm, deceased, plaintiff, and upon hearing, the judgment of the probate court was reversed. On petition in error to the district court, the-judgment of the common pleas was affirmed; and leave is-now asked to file a petition in error to reverse the judgment of the district and common pleas courts.
    
      James Mason and W. J. Boardman, for the motion.
    
      B. P. Eanney and J. E. Ingersoll, contra.
   By the Court.

By the 407th section of the code of civil' procedure, when the plaintiff in an action dies, and his-right has passed to his heirs or devisees, who could support the action if brought anew, the revivor must be in their names. By analogy, we have no hesitation in saying this provision is applicable to proceedings in error. It follows-that the court erred in ordering the revivor in the name of the administrator. The right of Bohm, upon his death, passed to his heirs or devisees, and they alone could support the proceeding in error, if brought anew. The judgment must be reversed, and the cause remanded to the common pleas for further proceedings.

Judgment accordingly.  