delivered the opinion of the Court:

The áppellee, Thomas W. Buckey, has moved to dismiss this appeal because no citation was issued and served as required by section 5, rule 10, of this court.

It appears that citation was issued in due time after entry of the appeal in the court below, but had been returned unserved because of failure to pay the fee required therefor. If this were all that is shown by the record the appeal would have to be dismissed. Chester v. Morgan, 11 App. D. C. 435, 439.

The appellee, was, however, informed of the prosecution of the appeal by notice given, under the rules, of appellant’s designation of the parts of the record to be included in the transcript. To this designation he expressly consented, and the transcript prepared in accordance therewith was then obtained and filed *268with the clerk of this court. By this action the failure to serve tbe citation was waived, and the motion will, therefore, be denied. Denied.