On motion to dismiss the appeal. By the court :
Preston, J.A motion has been made to dismiss this appeal, on the ground that no citation of appeal issued in the case, to the appellee, notifying him of the appeal granted. It was not necessary. The appeal was granted on motion, in open court, at the same term atwhich the judgment was rendered. Acts of 22d March, 1843, p. 40.
The appellee moves for the dismissal of the appeal, on the further ground, that the certificate of the clerk of the district court does not show that the record contains all the evidence, and is a complete record. The counsel of the appellant makes affidavit, that the record contains all the evidence offered by the parties on the trial of the cause, and states that the defect in the clerk’s certificate was discovered only when the cause was called for trial and the motion to dismiss the appeal was made.
The act of the 20th of March, 1839, provides, that no appeal shall be dismissed on account of any defect or error in the certificate of the clerk, whenever it shall appear that such defect or error is not imputed to the appellant. B. and C., p. 181. The act embraces the pvesent case.
*258The counsel of the appellant, on his affidavit and statement, applies for time to have the clerk’s certificate corrected. He is entitled to it, by the act just cited, as well as by the 898th article of the Code of Practice. Let him have until Monday next, to have the certificate corrected.
It is therefore ordered, adjudged and decreed, that the plaintiff and appellant have until Monday next, to have the clerk’s certificate of the lower court corrected.