
    (42 South. 157.)
    No. 16,071.
    WILLIAMS’ HEIRS et al. v. ZENGEL.
    (June 18, 1906.)
    Appeal — Second Appeal — Rights oe Appellee.
    As between the appellant and appellee the lower court cannot, as a general rule, make any order in the case after the first appeal has been perfected. Hence it cannot grant an order for a second appeal, and the only way in which the appellee can obtain an amendment of the judgment in his favor is by answer to the appeal^
    [Ed. Note. — For cases in point, see vol. 2,1 Cent. Dig. Appeal and Error, § 48-52, 2217-2224.] 1
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.
    Action by the heirs of Henry T. Williams and others against Prank Zengel, curator and individually. Judgment for plaintiffs, and defendant appeals.
    Dismissed.
    Cunningham & Cunningham and Pierre De Vezin Olivier, for appellant. William Winans Wall and Lapeyre, Monroe & Breazeale, for appellees.
   PROVOSTT, J.

This is an appeal taken by the defendant in the case of same title this day decided. The object of taking it was to supply the place of the answer filed to the other appeal in case the motion to strike out that answer should be sustained. But the motion was overruled, and as a result this appeal became functus officio; all the issues involved in it having been passed on.

For determining, however, the liability for the costs of the appeal, it becomes necessary to pass on the motion to dismiss.

The motion is based on the following article (889) of the Code of Practice, to wit:

“But if the appellee, on the appeal of the other party, neglect to pray that the judgment be reversed on those points which are prejudicial to him, he shall not afterwards be allowed to appeal, but the judgment shall remain irrevocable for or against him.”

Clearly, under this article, after a case has passed out of the trial court and gone to the appellate court, the remedy of the appellee is hy answer to the appeal, and not hy a second appeal.

It is well settled that, as a general rule, after a case has passed to the appellate court, the trial court cannot make any order in it as between appellant and appellee. State ex rel. Gill v. Tissot, 34 La. Ann. 91; Carey v. Richardson, 32 La. Ann. 1170; State ex rel. Irwin v. Judge, 36 La. Ann. 192; State ex rel. Cientat v. Judge, 32 La. Ann. 815; Succession of Pomeroy, 22 La. Ann. 518. Aliter, as between appellees. Levy v. Collins, 32 La. Ann. 1004.

Appeal dismissed, at cost of appellant.  