On the Motion to Dismiss the Appeal.
The opinion of the court was delivered by
Monroe, J.The transcript in this case was filed in this court November 8th, 1901; and upon February 21st of the present year, the defendant and appellee moved to dismiss the appeal upon the grounds: (1) That the transcript fails to show any order of appeal from the only final judgment “read and signed”; (2) that the district court had divested itself of jurisdiction by granting an appeal to the court of appeal and could not thereafter grant an appeal to this court; and, (3) that no notice of the appeal was served on the appellee, or his counsel.
As to the first ground; the motion comes too late. Webb vs. Keller, 39 Ann. 55. As to the second; the transcript shows that a judgment was rendered, September 12th, “maintaining the exception of want of jurisdiction, and dismissing the suit,” and that, upon the same day, an appeal was granted to the court .of appeal, conditioned upon the applicant’s giving bond; that, upon the following day, no bond having *138been filed in the meanwhile, on motion of the applicant’s attorney, the order of the previous day was vacated, and an appeal was granted tn this court. It is clear, under these circumstances, that the jurisdiction of the district court had not been devested. But, if the bond had been filed under the first order, the subsequent discovery that the appeal had been made returnable to .a. court having no jurisdiction would have entitled the applicant to an appeal to a competent tribunal, if applied for in time, the first order in such case being a nullity. McWilliams vs. Michel et als., 43 Ann. 984.
As to the third ground set forth in the motion; the transcript shows that the appeal was taken by motion in open court. It also shows service ,of citation of appeal upon “W. P. Edwards, Esq., a member of the firm of Edwards & Green, attorneys for defendant, in person, in the town of Abbeville,” and, whilst it does not appear from the transcript that Edwards and Green were the attorneys of record, and the fact is denied in the motion filed, neither does it appear that a citation was necessary. Beyond this, the motion to dismiss sets forth several grounds, the last of which relates to the want of notice, and it has .been held that this amounts to a waiver of such notice. State vs. Montegut, 7 M. 448.
The motion to dismiss the appeal is, therefore, overruled.