
    W. J. Weir et al. v. Max Killian.
    1. Summons to Join in Appeal. Issuance. Return day.
    
    Under Code 1880, § 2319, summons to join in an appeal if issued by the clerk of the Supreme Court after the transcript is filed, should be made returnable to the next succeeding term of court.
    2. Same. Time of service. Continuance.
    
    If .such summons is not served ten days before the return term of the appeal, the case should stand continued until the next term of court.
    Appeal from the Chancery Court of Issaquena County.
    Hon. W. G. Phelps, Chancellor.
    On March 18, 1882, after the transcript was filed in the Supreme Court, upon this appeal by W. J. Weir and Celeste Weir from a final decree in the case of Max Killian v. J. D. H. Weir et al., a summons was issued by the clerk of the Supreme Court for J. D. H. Weir to join in the appeal returnable on April 3, 1882, the first day of the present term. This writ was served personally on March 27, 1882, and J. D. H. Weir not appearing when the case was called, it was continued to the October Term, 1882. Afterwards the appellants moved the court to set aside the continuance, and allow a severance as to J. D. H. Weir and a submission of the case.
    
      Franh Johnston, for the motion.
    Service of this summons ten days before the return term of the appeal is not required. Code 1880, §§ 2319, 2345. The co-defendants do not occupy a mutually hostile attitude, like appellant and appellee. As the clerk cannot issue the writ until the record is filed, which is done upon the first day of the term, one vacation must always be lost in these cases unless service in term time warrants a severance.
    No counsel, contra.
    
   Cooper, J.,

delivered the opinion of the court.

Code 1880, § 2319, provides that, when all the parties to a-judgment or decree do not join in an appeal which is prosecuted, the clerk of the court before whom the appeal is taken, shall issue a summons, when the appeal is taken, to such as do not join in the appeal, to appear before the Supreme Court at the return term of the appeal, and it is further provided that “ the summons to join in the appeal may be issued by the clerk of the Supreme Court, at any time after the transcript shall be received by him.” Code 1880, § 2345, provides that the summons to answer the appeal shall be. served on the appellee or his attorney in fact or of record, at least ten days before the time to which it is returnable. No provision has been made in the Code, nor in any of the previous codes, as to the time when the service of the summons to join in an appeal shall be served. It is therefore a matter subject to be regulated by the rules of this court. We have adopted no rule upon the subject, but from an examination of the records of the court, which we have caused to be made, extending back through many years, it is found that the practice has been to make such summons returnable to the next succeeding term, in cases in which the writ has been issued by our clerk in analogy to the practice of issuing writs to appellees. There have been occasional departures from the practice, but they appear as exceptional. We consider this practice equivalent to a rule of court, and will adhere to it. As the summons in this cause was not served ten days before the return term of the appeal, the cause ought to stand continued until the next term.

Motion overruled.  