This was a motion to set aside the dismissal of an appeal because the action had been brought by copartners, one of whom was dead when the appeal was dismissed, and no order was taken before the dismissal that the action proceed in the name of the survivor. The court refused the motion to set aside, and this refusal is the error assigned.
The judgment was amendable, and therefore should not have been set aside. The action survived, and the judgment could be made to read by amendment nunc pro tunc in the name of the living partner as survivor.
Judgment affirmed,