
    L. Surgi v. City of New Orleans.
    Where the Clerk has omitted to issue a citation of appeal in conformity to the order granting the appeal, the error is not attributable to the appellant; the appeal will not be dismissed on such ground, but time allowed to correct the error.
    APPEAL from ihe Fifth District Court of New Orleans, Augustin, J.
    
      M F. Dwell, for plaintiff.
    J". J. Miehell, for defendant and appellant.
   Merrick, C. J.

In this case there is a motion to dismiss the appeal.

The judgment was signed on the 31st day of January, 1857. The motion for an appeal and order of appeal were made and allowed on the 4th day of February, it being also ordered that a citation of appeal issue to the plaintiff.

On the 14th of February, the plaintiff took a rule upon the defendant before the District Court, to show cause why the order for a suspensive appeal should not be set aside, on the ground that no proper appeal had been taken. When the rule came on for hearing it was ordered, on the motion of plaintiff’s counsel, that the rule be dismissed.

This is not one of those cases in which the want of a citation is attributable to the appellant. It was prayed for in the motion for an appeal and the vo luntary appearance of the plaintiff in his rule to set aside the order of appeal, and the abandonment of that motion was calculated to put the Clerk off his guard. Under the nineteenth section of the Actof 1839, it is in the power of this court to give time to correct the error. See Act of 1839, p. 1C4.

Now, therefore, unless the plaintiff and appellee do enter a formal waiver of the citation of appeal in this case, it is ordered, that this case be continued until the second Monday of June next, in order that the plaintiff and appellee may bo served with the copy of the motion and order, as well as the citation of appeal.  