delivered the opinion of the court. *

The dismissal of the appeal is prayed for, on account of the irregularity of the service of the citation. The sheriff’s return is, “served on N. M. Riker, by handing a copy of cita-to P°tls> Esq., his attorney, he being absent from the state.” The Code of Practice, 582, authorizes the service on the attorney, solely in cases in which the appellee resides *581out of the state. Absence does not authorize it, when the party does not reside out of the state, for then, a copy of the citation must be left at his domicil; and it cannot be legally served on the attorney, or left at his domicil.

The appeal, therefore, must be dismissed.