On a motion to dismiss:

The motion to dismiss cannot be maintained, lo. The appellant had, under the article 695 of the Code of Practice, the right to withdraw, on motion, his appeal, as the appellee had not then been cited. *3382o. The second appeal was seasonably taken during the year; and when, as was the case, the Supreme Court closed its session before the return day fixed by the District Court, the record of appeal was properly filed on the first day of the succeeding term. Wells v. Lamothe, 10 La. 410. Besides, the appellee haying caused the case to be set down for trial, can not now urge such objections, Creevy v. Breedlove, 12 An. 745.

Motion dismissed.