This case is before us on a motion to dismiss the appeal on the ground that there was no service of the petition and citation of appeal upon appellee or her counsel. *Page 363

The order of appeal was applied for by the petitioners in chambers, after adjournment of court, and it does not appear that they asked for or obtained an order directing the service of citation of the appeal upon the appellee, nor does the record show that any citation of appeal has been issued and served either on her or her counsel.

The identical issue here raised has been presented to this court in innumerable cases and was disposed of in the case of Ducre v. Succession of Ducre, 167 La. 133, 118 So. 864, as follows:

"The order of appeal having been obtained in chambers, the appellees are entitled to citation. Plaintiffs not having asked in the court below that the appellees be cited to answer the appeal, the failure to cite them is not attributable to the clerk and sheriff, but to the appellants themselves. Therefore the appeal is not saved by section 36 of the Revised Statutes, but must be dismissed, for when, by the appellant's fault, the appellees have not been cited, a motion to dismiss the appeal must prevail." Citing as authority Schmitt v. Drouet Rabasse, 42 La.Ann. 716, 7 So. 746; McCutchen v. Hudson, 132 La. 177, 61 So. 157; Smith v. O'Reilly Elevator Company, Ltd., 134 La. 635, 64 So. 494; Succession of Morris, 136 La. 69, 66 So. 542; King v. First Methodist Church, 137 La. 879, 69 So. 593; State v. Salmen Brick Lumber Company, 149 La. 968, 90 So. 273; Investors' Mortgage Company v. Aleman, 165 La. 104, 115 So. 383. See, also, Act 53 of 1839; sec. 11 of *Page 364 Act 45 of the Extra Session of 1870, and Article 898 of the Code of Practice.

For the reasons assigned it is ordered, adjudged, and decreed that the appeal is dismissed at the cost of appellants.