
    No. 10,524.
    Eugene Schmitt vs. Drouet & Rabasse. James P. Guinault vs. Drouet & Rabasse. F. Trepagnier vs. Drouet & Rabasse. Pierre Birba vs. Drouet & Rabasse.
    In cases of appeals taken by petition not filed in open court in presence of adverse party, citation is essential.
    Tlie law requires appellant to furnish the necessary stamps for the citations of appeal and when, owing to his failure so to do, the citations are not issued and served, this is imputable to his fault.
    Want of citation imputable to appellant’s fault entails dismissal of appeal.
    Appearance of appellees in lower court to urge dismissal of appeal before the return day thereof does not operate a waiver of citation.
    The law requires the appellees in this court to file all their grounds for dismissal of appeal within three days; hence, provided they plead want of citation as the fast ground, it will not be waived by the subsequent addition of other grounds.
    An appellee has a right to urge, on a motion to dismiss, want of citation and other grounds.
    All the grounds, in the same appearance, must be considered as urged in the alternative.
    By relying on the grounds supplementary to that of want of citation, the appellee does not waive the first ground of such want.
    Were he required to urge want of citation alone and remitted to the other grounds in case of the overruling of the first ground, he might come too late afterward.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.
    
    
      Gharles Longue for the Appellants
    cited: 26 An. 148; 23 An. 803; 5 La. 258; 4 La. 91; 10 Rob. 140; 27 An. 542.
    
      W. E. Murphy and Omer Villeré for the Appellees
    cited: 22 An. 626; 25 An. 623; 21 An. 154; 22 An. 115; 29 An. 776.
   Motion to Dismiss.

The opinion of the court was delivered by

Fenner, J.

The motion is based on three grounds, of which the first is that, by the fault of appellant, appellees were not cited.

The appeal was not by motion in open court, but by petition, and, under the plain terms of the Code of Practice, citation was necessary.

Appellants’ contention that the concluding sentence of Art. 574, C. P., which says: “In such case no citation of appeal or other notice shall be necessary,” applies as well to appeals by petition as to those by motion in open court, provided the petition be filed at the same term with the judgment, has no merit. The article has been too often eonstrued-in a contrary sense to leave such question open.

The failure to cite the appellees is stated in the clerk’s certificate to be due to appellant’s failure to furnish the necessary stamps therefor. The law requires such stamps, and made it the duty of appellant to furnish them.

The absence of citation is therefore clearly imputable to his fault.

It is elementary that when, by appellant’s fault, the appellees have not been cited, the appeal must be dismissed.

Appellant claims a waiver of this exception by two causes:

1. That, in the lower court, before the return day of the appeal, appellees appeared in the lower court and moved the dismissal of the appeal on the grounds cognizable there. As this took place before the time for service of citation had expired, and before the appellees knew that there would .be a failure to cite, it is clear it can not operate any such waiver.

2. That, in the motion to dismiss, he embodied other grounds than that of want of citation. The first ground urged is the want of citation, and the other grounds stated follow.

The rule that appearance for any other purpose than to except to want of citation is, in ordinary suits, a waiver of the latter defect, can not apply in this case. The law required the appellees to file all their grounds for dismissal within the limited delay of three days. They could not, as in ordinary suits, stand on their plea of want of citation, and abide its determination before filing other pleas. Any grounds which they failed to file within the three days were irrevocably abandoned. • The law imposed no such penalty upon the exercise of their right to urge the absence of citation. It only required that they should urge such exception first and in advance of any other. They have the right to have it decided, and, if overruled, then to have their other grounds passed upon.

As we conclude that the want of citation is sufficient ground for dismissing the' appeal, the other grounds pass out of view.

Appeal dismissed.

On Application por a Rehearing.

Bermudez, O. J.

The grounds on which the appellees moved to dismiss the appeal were logically set forth: want of citation, insufficiency in amount of the bond, etc.

They were considered as urged in the alternative.

The appellees had to object to the want of citation at the very threshold, before resorting to any other means. Had this not been done, but had the other grounds been presented alone, they could not have subsequently pressed want of citation, which would have had to be considered[as waived.

The appeal was dismissible on the first ground, and if it was not valid, it might have been for those next stated.

Obviously the court was called on to pass upon the grounds in the order in which they were preferred.

As the court deemed that the appelle.es had not been cited, by the fault of the appellant, it became unnecessary to inquire into the other objections, which could have been examined only had the first ground been found untenable.

The appellees were not bound to urge the^waut of citation alone, and reserve the other objections for another appearance. There are some grounds which must be set forth within a certain delay after the return day, and which, if not then filed, could not afterward be entertained, as coming too late.

The appellees could have urged, as they have done, the want of citation at first, and next, eventually, seriatim, and in the alternative the other grounds of dismissal, in the same first appearance. This they did consistently.

We have not been shown in what respect the previous decree is erroneous.

Rehearing refused.  