There was a judgment for plaintiff in the court a qua for the sum of $145, and defendant moved for a suspensive and devolutive appeal, which was granted. The appeal was made returnable on February 14th, and the bond fixed at the su.m of $200, which was furnished the same day.
Thereafter but still within the time allowed for a suspensive appeal, defendant suggested the insufficiency of the bond and moved again for a suspensive and devolutive appeal which motion the Court allowed, the return day being fixed for February 21st, and bond fixed at $300, which was sufficient. This bond was furnished on the same day.
The transcript was lodged in this court on February 19th, and appellee moves to dismiss on the ground that the return day was February 14th, as fixed by the first order of appeal, and the transcript was not filed within three days thereafter.
Some explanation is offered in appellant’s brief why the return day in the second order of appeal was different *403from that fixed in the first. This, however, is immaterial; it being well settled that the appellant is not responsible for the fixing of the return day.
The only question is whether or not defendant, having been granted an appeal returnable February 14th, and having perfected the same by furnishing the bond, could thereafter pray for and be allowed a second appeal, which, if in time, would suspend the judgment.
The whole theory on which appellate Courts dismiss an appeal for failure to file the transcript in time, is the presumption that the appellant has voluntarily abandoned his appeal. Hence, it has been held that “the abandonment of an appeal, to debar a subsequent appeal, must be a voluntary abandonment.”
Hoover vs. York, 35 An. 574.
Accordingly the dismissal of an appeal on motion of the appellee cannot be considered as an abandonment of the appeal so as to debar the right to a new appeal if taken in time.
McGaw vs. O’Bierne, 18,081 Sup. Ct., Feb. 28, 1910; Dugas vs. Truxello, 15 An. 116.
And if the appellant perceives that his appeal is liable to be dismissed for informality, he need not wait for such action to be taken, but may at once take a new appeal, which, if in time, will produce its effect. The intention to abandon the appeal must appear unequivocally.
Suc. of Weber, 110 La. 675.
In this case the intention to abandon the appeal is negatived by the fact, as said in Hoover vs. York, where it was also held that “an appeal should not be dismissed unless the right thereto has been clearly forfeited, and in case of doubt the appellant should have the benefit of it, and the appeal be maintained.”
*404March 21, 1910. Rehearing refused May 16, 1910.We are of opinion that the appeal herein should not he dismissed.
Motion denied.