
    HEMPKIN vs. AVERETT.
    Western Dist.
    
      Oct. 1838.
    APPEAL FROM THE COURT OF THE SEVENTH JUDICIAL DISTRICT, FOR THE: PARISH OF OUACHITA, THE JUDGE OF THE SIXTH PRESIDING.
    Where there was not time to cite in the appellee, on the return day fixed’ by the judge, the appeal, on motion of the appellee, will be dismissed.
    When there is not time to cite the appellee to the next term, the return day should be fixed for the first day of the succeeding term.
    
    The appeal in this case was granted on the 21st day of September, 1838, and made returnable the 1st day of October following, leaving but nine days intervening, besides tbe travelling time of one day for every ten miles.
    
      M‘Guire, for the plaintiff and appellee,
    moved to dismiss the appeal, because the return day was improperly fixed, and that the citation required the appearance of the appellee at a different day from that fixed by the judge.
    Where.there was not time to in the ap* .to-day1'fixed tytRe judge, the •appeal, on mo-«on of the ap-dismissed!11 be
    noTtime'to'Ste ,he appellee to the next term, the .return day lorAe firstly ,of t]ie succeed-ipg term.
    
      Garrett, contra.
    
   Martin, J.,

delivered the opinion of the court.

The only difference between this case and that of Ginn vs. Clack, just decided, is, that the appeal in this was on the 21st of September, 1838, while in that it was granted on the 25th of the same month. • The citations in both fixes the same day of appearance to the appellee. The circumstance of the appeal-in this case having been granted four days sooner than in the former, is unimportant, as the return day in b.oth were improperly fixed in the judge’s order, and . , . . , r ,r Ji v , ... m the citation of appeal. ■ For the reasons given in the case referred to, of Ginn vs. Clack, the appeal in this case must be dismissed. • ,

It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, with costs.  