(concurring).
I do not agree that the trial court was divested of jurisdiction in this cause upon plaintiff filing an appeal bond under the order of appeal to the Court of Appeal for the reason that that order was invalid inasmuch as the Court of Appeal did not have appellate jurisdiction of the case.
Of course, I do not dispute the soundness of the holdings, cited in the majority opinion, that the filing of the bond perfects the appeal and divests the trial court of jurisdiction for all purposes except to test the solvency or sufficiency of the appeal bond and to transmit the record to the appellate court. But those authorities are unsuitable in instances where the order of appeal has erroneously been granted to a court which has no jurisdiction of the appeal. In such! cases, it is right for the trial court, upon timely application, .to rescind its order and grant another order of appeal to the proper appellate court. In Vallee v. Hunsberry, 108 La. 136, 32 So. 359, 360, the court appropriately observed:
“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 appellant (sic) to an appeal to a competent tribunal, if applied for in time; the first order in such case being a nullity. McWilliams v. Michel, 43 La.Ann. 984, 10 So. 11.”
On the other hand, it is my opinion that the appeal has been correctly dismissed in view of plaintiff’s failure to furnish an appeal bond pursuant to the order of appeal to this Court granted on July 27th 1951. It seems too obvious to warrant serious discussion that the bond which plaintiff filed under the order of appeal to the Court of Appeal cannot be employed as a substitute so as to effect a compliance with the subsequent order of appeal.
I therefore concur in the result.