majority">Carleton, J.,

delivered the opinion of the court.

In this case the record was brought up by the appellee, who, in his answer, avers there is no error in the judgment of the court below ; and on the same paper moves for a dismissal of the appeal, on the ground that the citation was served before the appeal bond was filed, and prays ten per cent, damages, as for frivolous appeal.

The appellant insists that the motion comes too late» inasmuch asD the plea to the merits precedes the motion to *471dismiss, notwithstanding both are written on the same paper, and cites 4 Martin, N. S. 360. 4 Louisiana Reports, 67.

The appellee may file an answer to the merits, and ,on the same ipaper make a written motionf, to dismiss the appeal.If the citation be issued before-the appeal bond is filed, the appeal will not on that account be dismissed. It is irregular, but it would be nugatory to issue another citation, after ¿filing the bond, when one had already issued.In an action against the maker of a note, endorsed by the payee, in blank, the endorsees and holders must prove the endorsement of the note to them before they can recover.

' • It does not appear to us material, whether the plea or motion precede in order on the paper, as they were filed simultaneously. We think the appellee should be heard on his motion to dismiss, which we think, however, should not prevail. For although it was irregular to issue the citation before the appeal ’bond was filed ; yet, when once filed, the citation issued as a matter of course, and it would have been nugatory to issue another, when one had already been served. Moreover the appeal did not operate a supersedeas, and the appellee could derive no benefit from its dismissal, while-it would be hard, if not unjust, to drive the appellant to the trouble and expense of another appeal, especially as the irregularity did not proceed from himself. We think the appeal ought to be sustained.

This brings us to an examination of the merits.

The'appellant asks for the reversal of the judgment, on the ground that there is no proof of the endorsement of the note to the plaintiff.

We have looked carefully over the record which is certified to contain all the evidence upon which the. cause was tried in the first instance, and do not find any proof of the payee’s endorsement. We think the plaintiffs have failed to make out their case, and that the judgment is erroneous.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be reversed, and that ours be for the defendant, as in the case of a non-suit, with costs in both courts.

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