Muset

after stating the case as above, delivered the opinion of the court.

A motion is made to dismiss the writ of error. The principal ground of the motion, involving the only question which we find it necessary to discuss, is that the writ of error was issued and filed 20 days before the assignments of error were filed, whereas rule 11 of this court provides that no writ of error shall be allowed until the assignment of errors shall have been filed. The record shows, however, that on the day when the assignments of error were filed, the plaintiff in error applied to the court for leave to withdraw its writ of error, and to correct the proceedings by presenting a new petition, writ, and bond at the same time with the assignments of error. The application was opposed by *771 counsel for the defendant in error. In view of that fact and the failure of the court to allow the application, we think the present motion should be denied. The substantial result secured by rule 11 is that the assignment of error shall be on file at the time when the writ of error is taken out and the citation issued. The defendant in error has no ground of complaint if he had notice of the filing of these…