On Rehearing.
The defendant, whose property was seized, sued out an injunction to prevent its sale, on the ground that it was exempt from sale for debt under the homestead law.
Motion to Dismiss the Appeal.
[3] Plaintiff moved to dismiss, because the judge a quo failed to allow sufficient delay *865from the date of his order allowing the appeal to the date for filing the record in the appellate court.
This court has decided that such an error is imputable to the judge, and is not fatal to the appeal. It does not appear that the oversight was other than an oversight of the judge.
Part of the prayer of the petition is as follows:
“Prays for an order of devolutive appeal from said judgment, returnable to the Supreme Court of Louisiana; that the return day, therefore, be fixed by the court, as well as the amount of the bond” — which was done.
. There are several orders of appeal. In one of these orders, the word “6th,” date of the order, is in the handwriting of the judge by whom the order was signed.
It is true, as said by the appellee, that the judge shall fix the return day in the order granting the appeal, which shall not be less than the time fixed in the statute, nor over the delay mentioned in the act, except by consent of parties.
But it is also true that the duty of fixing the return day rests with the judge a quo.
This court has decided again and again, as it is the «ourt’s order, as stated in the act quoted above, it is generally the court’s error. State ex rel. District Attorney v. Sheriff and Tax Collector, 47 La. Ann. 278, 16 South. 666; State ex rel. Breazeale v. Sheriff, 45 La. Ann. 1231, 14 South. 130; State v. Cannon, 44 La. Ann. 734, 11 South. 86.
Not appellant’s error, as it appears. Section 4 of Act 45 of 1870; Banking Co. v. Lumber Co., 47 La. Ann. 587, 17 South. 143; Pearce v. State, 49 La. Ann. 643, 21 South. 737.
The foregoing disposes of the, motion to dismiss the appeal, which is therefore overruled.
[4] Next in order of irregular proceedings, conducted without counsel in the justice court, the appellees move and pray that the appeal be dismissed for the reason' that plaintiff in injunction did not have process served on the defendants in injunction.
The defendants in injunction filed an appearance headed “Exception,” but in the body it is alleged that it is a plea to the merits, and they deny indebtedness. None the less the pleader prays that this appearance be noted solely for the purpose of an exception.
First, according to defendants, it is an exception and afterward it is an answer; at another time, it is an answer and not an exception. Of this there is certainty — it was an appearance which cures all defects of citation or want of service, and it follows that this objection is overruled.
This brings us to the allegation of the petition and the want of evidence. The debt- or, Henley, sets forth in his petition for an injunction, restraining his creditor, Allen, from seizing and selling his property, that he is the head of a family, and that his wife does not own $2,000 in her own right; that the property is exempt from seizure and sale under the homestead law; that he has been damaged, and other similar allegations.
This is the petition to which defendant filed an exception, or an answer, as before stated.
Proceedings before the justice of the peace are verbal, with the exception of certain notations, which should be made of them. Jurisdiction is not controlled entirely by the allegations, provided there is sufficient compliance with- the requirement in proceedings before the officer to enable the one sued to make out his defense. Plaintiff committed errors, so did the defendant, and the judge a quo is not free from them; for he, on the merits, decided that the mere offer to sell property subject to homestead had the effect of divesting his debtor from his right to a homestead.
We see no reason why the case should not *867again be heard in the lower court. For that reason, the judgment heretofore rendered is reinstated and made the judgment of this court. Having full authority in the premises under the statute, we have arrived at the conclusion to divide the costs of appeal between the appellant and the appellee in the proportion of one-half each.