The appellee has prayed to have the appeal dismissed, because the appeal was obtained by petition, and the appellee has not been cited.

The judgment was rendered in March, 1868; the petition for an appeal was filed on the twenty-eighth of September, 1868, and on the same day an order for an appeal was granted. No citation ef appeal has been issued in the case. The appeal was taken in time. C. P., articles 567, 573, 574.

The neglect of the clerk to.issue, or of the sheriff to serve, the citation of appeal, is not attributable to the appellant, and the appeal can not be dismissed on account of the conduct of these officers. Acts of 1839, page 170; 13 An. 260; 14 An. 698;' 1 N. S. 519; 10 La. 150.

On the merits there are only questions of fact presented; and we think the evidence preponderates in favor of the defendant.

It is therefore ordered that the judgment of the District Court bo affirmed, and that the appellant pay the costs of this appeal.