¶1On Motion to Dismiss the Appeal.
¶2Defendants move to dismiss the appeal in this case on the ground that the application therefor was made in December, 1902, by means of a petition, to which was appended an order prepared by the counsel for the appellants, whereby said appeal was made returnable on the first Monday in February, 1902; and that said order having been signed as thus prepared, the error in the return day is to he attributed to the appellants. The facts are as stated, but it lias been held that the fixing of the return day, under such circumstances, is the act of the judge, and that the appeal will not be dismissed. Pearce et al. v. The State, 49 La. Ann. 643, 21 South. 737; Chaffe & Sons v. Heyner, 31 La. Ann. 594. The appellees were cited to appear on the first Monday in February, 1903, when it was intended that the appeal should be made returnable, and when, in point of fact, It was returned; and, as they have appeared, it is unnecessary mat there should he any further delay. The motion to dismiss is therefore overruled.