Ten Day Grocer Co. v. Smoot & Co.

ELLIOTT, J. J. E. Smoot & Co., Inc., moves to dismiss the appeal herein on the ground that no citation has issued or been served on appellee as the law requires. It appears from the record that plaintiff obtained an order for a suspensive and devolutive appeal on January 18th, 1927, the day the judgment was signed. This order does nqt direct that the appellee be cited. No bond appears to have been given under it, and so far as the record shows, nothing was done under it. Another order for a devolutive appeal was obtained on November 7th, 1927. This order directs that the appellee be cited according to law, and an appeal bond was given under it, but it does not appear that the appellee was cited to appear and answer the appeal. As the order directs that the appellee be cited and as nothing indicates that the failure to do so is chargeable to appellant, the appeal will not be dismissed, but instead, the record is ordered remanded to the lower court in order that the appellee may be cited as the law provides. C. P. Art. 581, 582, 583, 584.