
    SMITH vs. NOLAND.
    APPEAL FROM THE COURT OF PROBATES OF EAST FELICIANA.
    The appellee must be cited to appear before the court of appeal at its next term, if there be sufficient time.
    The appellee must be cited to appear before the eourt of appeal at its next term if there be sufficient time.
   This case presents only a question of practice, and the facts are fully set forth in the opinion of the court, delivered by

Mathews, J.

. The counsel for the appellees, (the plaintiff and inter-pleader) moves to have this appeal dismissed on two grounds. 1. Because it was not made returnable to the next term of the Supreme Court after the appeal was granted. 2. Because the judgement, which is a decree ordering the partition of property, is not final- until the partition be made and homologated, and consequently not appealable from.

In support of the first ground, on which the dismissal is claimed, reference is made to the order granting the appeal, to the appeal bond, and to the term of the Supreme Court at which the appeal was made returnable. The order for the appeal seems to have been made on the ninth of January, 1832; the date of the bond is the I3th of February, of the same year, and the appeal is made returnable to the April term, &c. The citation necessarily conforms with the return day. The 583d article of the Code of Practice is impeJ j ^ x rative, that an appellee must be cited to appear before the .. n . court oi appeal, at its next term, it there be sufficient _ o „ ^ ®c*

Now, if we assume either the date of the order granting the appeal, or that of the bond, the appellant had time sufficient to cause the appellees to be cited to appear at the March term of the appellate court. The appeal in the present case was, therefore, not taken according to law, and must be dismissed. This view of the cause renders it necessary to examine the second ground relied on by the ,, J b J appellees.

Turner, for appellant. Andrews, for appellee.

Lawson, for interpleader.

It is, therefore, ordered, adjudged, and decreed, that this appeal be dismissed, at the cost of appellant.  