
    No. 12,595.
    State ex rel. Oscar Broussard vs. Felix Voorhies, Judge, and J. H. Gary.
    Before a regular session of the District Court liad been reached at ‘which was returnable an appeal which had been taken from a judgment before a justice of the peace, the parties to fclie same at a special term of the court which had been convoked, entered into a ‘‘consent and agreement to ‘try’ the ease at that term.” Notwithstanding that agreement the District Court dismissed the appeal upon a motion of the appellee claiming he had not been cited. Held — 'Error.
    The filing of the transcript and the docketing of the ease in the District Court • before the return day did not have the effect of advancing the return day. XJp to that day, at least, appellant would have had the right to have caused citation to issue if none had been made or a new citation to issue if that was defective.
    Appellee could not take advantage of appellant’s consent to “ try ” the case to cut off the latter’s right to have correct citation made.
    His consent to try the case at the special term was a waiver of any exception he might have had of want of citation or of defective citation. Creevy vs. Breed-love, 12 An. 7áo; White vs. McGuire, 16 An. 338.
    The jurisdiction of the District Court having vested through this consent, should have been .retained.
    
      ^~yN APPLICATION for Writs of Certiorari and Mandamus.
    
    
      Walter J. Burke & Bro. for Relator.
    Respondent per se.
    
    Submitted on briefs November 2, 1897.
    Opinion handed down November 15, 1897.
    On APPLICATION FOR A WRIT OF CERTIORARI AND MANDAMUS.
    The defendant, Gary, brought suit against the relator in the Second Justice’s Court for the parish of Iberia, and on the 24th of May, 1897, obtained judgment in his favor for the sum of ninety dollars, with five per cent, per annum interest from the date of judgment until paid and costs.
    On the 25th of May defendant, having furnished a bond for one hundred and thirty-five dollars, obtained a suspensive appeal from the judgment.
    The record sent up recites, that “thereupon a notice and citation of appeal, of which the following is a copy, was issued:
    NOTICE AND CITATION OF APPEAL.
    J. H. Gary 1 vs. > Oscar Broussard. J
    Second Ward Justice Court for the Parish of Iberia, State of Louisiana.
    
      To J. H. Gary: Please take notice that the defendant, Oscar Broussard, in the above entitled action, appeals from the judgment therein made and entered in the Second Justice Court for the parish of Iberia on the 24th day of May, 1897, in favor of the plaintiff, for ninety dollars and costs, to the Nineteenth Judicial District Ward of this State, and that said appeal will come up for hearing and tidal in said court at the next term thereof, to be held at New Iberia in the parish of Iberia.
    ’• This notice was served personally upon the plaintiff Gary on the 3'lst of May.
    
      On the 16th of August a transcript in the case was filed in the District Court. ■
    The first regular term of the District Court after the appeal was to commence on the 20th of September, 1897, and the appeal taken was returnable at that term.
    It appears, however, that a special term of the District Court for the transaction of the civil business was ordered by the judge to commence on the 19th of August, and that the court opened upon that day under the order.
    Upon that day (the 19th of August) the following agreement was signed and filed:
    “ Joseph H. Gary vs. Oscar Broussard.
    
      “ We, the undersigned counsel, agree and consent to try the above entitled cause at the term of court now in session.”
    On the 20bh of August the following motion was made: “Now into court comes the appellee and moves to dismiss the appeal herein because no legal citation or notice of appeal had been served on him, nor had there been any legal return of any such citation or notice of appeal.” Whereupon he prayed for the dismissal of appeal at appellant’s costs.”
    On the 14th of August appellant (relator), suggesting that the justice of the peace before whom said cause was tried, making said appeal returnable to the next regular term yet to be held, had issued a notice of appeal unaccompanied by the citation prescribed, and that it was necessary that the transcript be returned to his court to allow the making of the proper citation and service thereof, and that all necessary time therefor should be granted, moved the court for the return of said transcript to said justice’s court to allow proper citation to issue, and for general relief.
    The motion to dismiss the appeal, and that to return the transcript, having been argued and submitted and taken under advisement together, the court, on the 80th of August, made the following ruling:
    “The agreement of counsel dated August 19,1897, the court does not look upon as an appearance or a waiver of any rights by either party. Had the motion to correct the transcript been filed before the motion to dismiss, and within three days after the opening of the court, the demand of appellant would have been granted. As it was, it came too late. All rights are reserved to appellant for an appeal in accordance with law. On the same the minutes show that the motion to send back the transcript was overruled and the appeal dismissed at appellant’s costs. Appellant applied for a rehearing, but his application having been refused, he applied to this court for relief under its supervisory powers, claiming that the action of the District Oourt was illegal and worked a denial of justice. He, in his petition, prays that writs of certiorari and mandamus and such other writs issue from this court as may be necessary to protect his rights, and that there be judgment annulling the ruling and decrees of the District Oourt, and that the District Judge be ordered to place the case on the trial docket for trial regularly as upon an appearance made by the appellees, or in default of this that the District Oourt be ordered to grant further time to have the citation in such manner as may be ordered, the case being considered as properly on appeal suspensively.
    The District Judge in his answer denied the'right of relator to the relief sought. He called the attention of the court to the fact that the judgment had been appealed from suspensively. He declared that the right to appeal was not denied relator, but on the contrary, was specially reserved; that he was not without a remedy in law, and that he could not with any color of reason. charge the presiding judge with denying him the exercise of any of his rights. He stated that the appeal of the relator was dismissed during the August term of the court; that he filed in the last days of the term a motion for a rehearing, which was overruled during the following term of the court, in the month of September; that, in that motion, appellant admitted that the court had properly decided that there was no citation of appeal in the case. He averred that he had refused to perform none of the acts imposed on him by law and had deprived appellant of none of his rights.
   The opinion of the court was delivered by

Nicholls, C. J.

The suspensive appeal taken in the justice’s eourt was returnable at the next regular session of the District Oourt. The bond required for the appeal was given and the transcript filed in due time. The filing of a transcript does not have the effect of cutting absolutely from an appellant the right of requiring that a new citation should be made upon the appellee, if that made was made' defective in any way, or that a citation should be made to issue if the transcript had been filed prior to any citation whatever. We need not examine this case nor discuss the question as to the particular period when such right would be cut off, nor the circumstances under which an appeal could be rightfully dismissed for want of citation or defective citation. The 'right of correction would certaiuly extend, at the least, up to the return day and matters took such a shape in this case before that day arrived as, in our opinion, to withdraw from the appellee the legal power to urge a want of citation. Before the day fixed for the regular law term of the District Court arrived, a special term of that court opened. The transcript in the case of Gary vs. Broussard was already docketed, the transcript having been filed the day before. On the morning of the opening of the special term the counsel of appellant and appellee signed and caused to be filed an argument that the cause should be “ tried” at that special term. The filing of the transcript and the docketing of the case did not have as a result the advancing of the return day, nor as a giving of rights and privileges to the appellee to which he would only have been entitled after the return day had been reached. The case though docketed was not before the court to the extent of [enabling the appellee to file and have passed upon prematurely, exceptions, motions or issues further than this should be done by consent. Unless by consent appellee would be forced to bide his time until the return day had been reached and all legal delays had expired. The parties, if they thought proper, could by agreement among themselves within legal limits control the • case, and such agreements would and should be given effect to by the appellate court, but precisely as made. We are of the opinion that when appellee consented to “ try ” the case at the special term he was bound by his agreement and that he could not, under an agreement to “ try,” seek to dismiss the case before a hearing on the merits. The agreement did not evidence a consent on the part of the appellant that the cause should be merely docketed. It had already been docketed by the clerk, and appellant’s consent thereto was not needed nor called for. Appellee’s consent to “try” the case at the special term which was then on the docket was inconsistent with an attempt on his part to have the appeal dismissed. Had appellee on the 20th of August caused the case to be fixed'for trial such action would have barred a subsequent motion on his part to dismiss the appeal. (Creevy vs. Breedlove, 12 An. 745; White vs. Maguire, 16 An. 338.) A direct agreement: to try the case at the special term would certainly not be less operative in bringing about a similar result. When the parties gave their mutual consent to the trial of the case, neither could, thereafter, of right, recede therefrom. Each acquired rights which the other was bound to respect. Ordinarily a party can not object later to a ,matter to which he has once consented. The consent by appellee to try the case was a waiver or relinquishment of any right which he might have otherwise had to object to the citation in the case. He was, on the face of the record, estopped from making the motion he did, and the court legally should have refused to entertain it. In doing otherwise and dismissing the appeal its action was illegal and injurious. The jurisdiction of the District Court having vested should have been retained. The case not being appeal-able to this court relator was authorized to call upon us for relief under our supervisory powers — he otherwise being without means of redress for the enforcement of a clear legal right.

We see no inconsistency in relator’s acknowledging that the citation which issued in the ease was defective, and his insisting upon rights acquired by him through waiver of such defects.

For the reasons herein assigned, it is ordered that the judgment of the Nineteenth Judicial District Court, dismissing relator’s appeal, be and it is hereby declared null and void and of no effect, and the cause is hereby reinstated on the docket and ordered to be proceeded with according tp law.  