[1] This is the second appeal by the plaintiff from the judgment in favor of the defendant.
The motion to dismiss was on the ground that the first appeal, pending in this court, divested the court below of jurisdiction to grant another appeal.
It appears from the record of case No.' 21527 of the docket of this court (140 La. 445, 73 South. 262), that a recent decree has been rendered, dismissing the first appeal on the ground of the insufficiency of the surety on the appeal bond.
The first order of appeal was for a devolu*673tive and suspensive appeal, conditioned upon plaintiff furnishing bond with good and solvent security in the sum of $250.
As the bond was furnished within ten days after the judgment was signed, it was suspensive in its character.
Defendant moved the trial court to set aside this bond on thé ground that the surety was insolvent and insufficient.
This motion was overruled, whereupon the defendant appealed to the Supreme Court (140 La. 445, 73 South. 262), which reversed the ruling and sustained the motion.
In the meantime the plaintiff within the year had obtained another order for a devolutive appeal, and furnished bond in the sum fixed by the court.
The first order of appeal became inoperative from the mere failure of the plaintiff to furnish a bond with good and solvent security, and the plaintiff had the legal right to obtain the order for a devolutive appeal. See Meeker v. Galpin, 4 Bob. 259, cited in Barrow v. Clack, 45 La. Ann. 482, 12 South. 631. See, also, Durel v. Murphy, 124 La. 157, 49 South. 1013.
In the instant case a new order of appeal was taken as suggested in Durel v. Murphy, supra.
The new order of appeal may have waived the first order of appeal, but the latter, never operative in law, did not prevent the plaintiff from taking an appeal according to law.
The cases cited by counsel for the defendant have been considered, but we do not think that they are applicable to the case before the court.
Motion to dismiss overruled.