delivered the opinion of the 1 colirt. A motion is made that the appeal may * be dismissed, on the ground that, although ° the appellee be a resident of this state, the citation was not personally served on him or left at his domicil, but was served on his attorney.

We find not any citation returned, but observe on the back of the record, “Service accepted of this appeal, Ripley & Conrad,” the aUornies at law of the appellee.

The right of appellees residing in the slate, to receive legal notice of appeal themselves,, is secured to them by law. 1 Martin, 440.

The admission of the service by the attorney, cannot have a greater effect than the actual service on him. No court ought to pass on the rights of a party, who does not appear by the return of the sheriff, or any act of his, to have been cited. The citation or the service of it may indeed be waived, but wé think the waiver cannot be made by any one *239bat the party without a special power. A ser- . v - vice on the attorney, does not authorise us to proceed, unless the absence of the client is legally proven.

ft is therefore ordered, adjudged and decreed. that the appeal be dismissed with costs.