Mr. Bailey, for the plaintiff, moved to dismiss the appeal, because it did not appear, that .a case had been made out by the appellant and served on the plaintiff or his counsel, within five days after the entry of appeal taken, as required by C. C. P., sec. 301. It appeared, however, from the affidavit of Mr. Bai’ringer, that the case had been stated and served in due time on Mr. Bong, one of the attornies for the plaintiff, who resided in the county where the action was tried, and had been returned by him without objection, and filed with the clerk. The motion to dismiss ' the appeal is therefore refused. The motion of defendant for a certiorari is also refused.
The Judge clearly erred in receiving the plaintiff as a witness to prove the services rendered by her to the deceased. C. C. P., sec. 343.
Per Curiam. Judgment reversed and 'venire de novo.