Plaintiff, appellee, moves to dismiss the appeal on the ground that the judge, having by an order granted in open court made the appeal returnable in 60 days, subsequently in chambers granted another order fixing a return day, and that the sfecond order was not properly served.
The motion for appeal asks for an appeal “returnable to the Supreme Court * * * according to law,” and the order indorsed upon it by the judge on September 21, 1906, reads in part:
“It is ordered that an appeal be granted * * * returnable in sixty days to said Supreme Court,” etc.
On September 28th the judge, ex proprio motu, apparently, made a further indorsement on the motion for appeal, as follows:
“In the above order, the court having omitted to fix a determinate day as required by law, the court now fixes Monday, November 12, 1906, as the day on which the appeal herein * * * is made returnable to the Supreme Court of Louisiana. It is further ordered that notice of the fixing of said return day be served on plaintiff herein, or her attorneys of record.”
The judgment was signed on September 21st and the appeal was lodged in this court on November 7, 1906.
It does not appear that either of the errors suggested can be imputed to the fault of the appellant or its attorneys. The matter is therefore governed by section 11 of Act No. 45, p. 101, of 1870 (Extra Sess.), which reads, in part, as follows:
“That no appeal of the Supreme Court shall be dismissed on account of any defect, error, or irregularity of the petition, citation, or order of appeal * * * or in the citation of appeal, or service thereof, or because the appeal was not made returnable * * * on a proper day, whenever it shall not appear that such defect, error, or irregularity may be imputed to the appellant or his attorney; but, in all cases, the court shall grant a reasonable time to correct such defects, errors or irregularities, in case they are not waived by the appellee, and may impose on the appellant such terms and conditions as, in its discretion, it may deem necessary for the attainment of' justice.”
There is no conflict between these provisions and those of Act No. 92, p. 150, of 1900, which require that the judges of the district courts (parish of Orleans excepted) shall fix the return days for appeals in civil cases not less than 15 nor more than 60 days from the dates of the orders, save by consent, and they have been applied on more than one occasion since the «act of 1900 was adopted, as they had frequently been applied before that time. Orleans & J. R. Co. v. Int. Constn. Co. et al., 113 La. 409, 37 South. 10; Hodge v. Mercantile Co., Ltd., 105 La. 669, 30 South. 142; Watkins Banking Co. v. Louisiana Lumber Co., 47 La. Ann. 581, 17 South. 143; Pearce et al. v. State, 49 La. Ann. 643, 21 South. 737; State v. Dellwood, 33 La. Ann. 1229; Elder v. City, 31 La. Ann. 500; Chaffe & Sons v. Heyner, 31 La. Ann. 594; State ex rel. Hoey & O’Connor v. Brown, Adm’r, 29 La. Ann. 861. As the appellee has appeared, by counsel, and argued the ease on the merits, we do not understand that she desires that its consideration shall be delayed for the correction of the *75alleged error In the citation. The motion to dismiss is therefore overruled..