
    Thorsen v. Illinois Central Railroad Company.
    [72 South. 879.]
    Appeal and Eeros. Bond. Insufficient amount. New ~bond.
    
    Where an appeal bond was defective because the penalty was too small, it was not a nullity and the appellant under Code 1906, section 92, so providing, had the right to file a new bond.
    Appeal from the circuit court of Montgomery county.
    Hon. J. A. Teat, Judge.
    Suit by W. A. Thorsen against the Illinois Central Eailroad Company. Prom a judgment for the defendant, plaintiff appeals motion to dismiss; appeal overruled and' appellant given time within which to file a bond in a penalty of not less than five hundred dollars and upon his failure to do so the case to be dismissed.
    The facts are stated in the opinion of the court.
    
      J. E. Price, for appellant.
    
      Mayes, Wells, May & Sanders, for appellee.
   Smith, C. J.,

delivered the opinion of the court.

The bond here in question is not a nullity, but is simply defective because the penalty thereof is too small, so that, under section 92, Code 1906, appellant has the right to file a new one. The ease of Wofford v. Williams, 69 So. 819, has no application. The trouble in that case was that the paper filed with the clerk below had not been approved by him.

The motion will be overruled, and appellant given fifteen days within which to' file a bond in a penalty of not less than five hundred dollars; and, upon his failure' so to do, the cause will stand dismissed.

Dismissed.  