On the Motion to Dismiss.
BREAUX, J.The facts are, as relates to the appeal, that on July 3, 1901, -the appel*676lant filed a petition for an appeal, and obtained an order of appeal from tbe judgment rendered. Tbe order fixed tbe amount of the bond at $500. The appellant instead of executing a bond for that amount, executed an appeal bond on July 3, 1901, for $250 — one-half less than required — and on the same day caused a citation of appeal to be served on the api>ellees. Seeking to correct that which was evidently an oversight, on the 8th day of July, 1901, still within the 10 days, appellant filed a petition,, and obtained a second order of appeal from the judgment. This order refixed the amount of the appeal bond at $500. On the same day (that is, on the 8th day of July) the appellant gave bond in the sum of $500, and immediately caused citation to be served on the appellees.
(May 25, 1903.)The appellees move to dismiss the appeal on the ground, in substance, that two appeals have been taken from the same judgment, and that it is impossible for two appeals by the same parties from the same judgment legally to exist at the same time; that although the bond of $250, being for a sum less than that ordered by the court, was inadequate to support the first appeal, yet the appellant was bound by the first appeal, as she had had the appellees cited to answer the appeal, and that, as to the'seeond appeal, the appellant was without right to obtain it, and the court without authority to grant it, because the appellant was without right to withdraw the first appeal. In our view, appellant, having failed to furnish a legal bond, although citation had been served, had not thereby lost the right of appeal if in time to file the record on the return day. The appeal was not such as the court could sustain. It was defective on the face of the bond.
Appellant did not choose to wait for a dismissal on appellee’s motion to dismiss, but acted within the 10 days, executed another bond, caused citation to issue, and completed an appeal before the return day.
Had she chosen to wait for the court’s action in case appellee had filed a motion to dismiss, she would have been in time to take another appeal, if the delay to file the record had not elapsed. In Dugas v. Truxillo, 15 La. Ann. 116, the court held that an appeal dismissed on motion of appellee cannot be considered as an abandonment of the appeal by the appellant; that the second appeal, having been taken within the year, is valid, under the authority of Smith v. Vanhille, 11 La. 382.
The appeal is now before us, and practically it would serve no purpose if it were dismissed. The appellant would be, under the ruling of this court, entitled to a devolutive appeal. Johnson v. Clarke & Meader, 29 La. Ann. 763. The theory of appellees for the dismissal is that the appellant has abandoned her appeal. This is not evident, for the act should be unequivocal to authorize a presumption of abandonment. Leggett v. Peet, 1 La. 296; Yale v. Howard, 24 La. Ann. 458; Lawson v. Ripley, 17 La. 238.
The second order of appeal was a copy of the first. It may be considered as the original order repeated. The appellant complied with the order issued. In the error committed in the first instance, we do not find that there was abandonment or the least intention to surrender the right of appeal. It is true that one may technically waive an appeal, although he did not mean to waive it, yet in this case we do not think that there was even a technical waiver.
The motion to dismiss is denied.