Marlin, J., delivered the opinion of the court. * The dismissal of the appeal is prayed for, on account of the irregularity of the service of the citation. The sheriff’s return is, “served on N. M. Riker, by handing a copy of cita-to P°tls> Esq., his attorney, he being absent from the state.” The Code of Practice, 582, authorizes the service on the attorney, solely in cases in which the appellee resides out of the state. Absence does not authorize it, when the party does not reside out of the state, for then, a copy of the citation must be left at his domicil; and it cannot be legally served on the attorney, or left at his domicil. The appeal, therefore, must be dismissed.