Whitfield, C. J.,
delivered the opinion of the court on the motion.
The case of Houston v. Witherspoon, 68 Miss., 188 (8 South., 515), is not authority here for two reasons: Eirst — The decree in this case was rendered in July, 1901, and the. appeal was *211consequently barred in July, 1903. The transcript was not filed in this court until September, 1903, more than two years after the rendition of the decree. Second — No citation was served on the appellee in this case, as was done in Houston v. Witherspoon. It was said in that case on this point: “In this case citation was served on the appellee, who did not avail of his right to apply to have the case docketed and dismissed, and will be held to have acquiesced in the delay.” The appellee here cannot be held to have acquiesced in the delay, since no citation was served upon him.
The motion is sustained.