*482On Application for Rehearing.
Watkins, J.Counsel for appellants insist that as it was decided in Pasley vs. McConnell, 39 An. 1097 — only inferentially, however— that a security on the bond of appeal is not disqualified by reason of his being a surety for the costs of suit, therefore a surety who has been adjudged solidarity with a party to the suit to pay the costs is not disqualified from becoming a surety' on the appeal bond of his co-judgment-debtor.
That is a non sequiter; the principle on which the cases controlling our opinion proceeds, being that the surety adjudged to pay costs becomes an appellee, if not, an appellant, and, therefore, when he again becomes surety on an appeal bond he occupies, necessarily, the double and inconsistent positions of an appellee whose interest is to maintain the judgment and a suret3? who is condemned to pay the judgment; but a mere surety for the costs of a pending suit is only conventually bonded and liable to be sued in the future, and is not in any sense a party to the judgment or appeal.
Counsel further complain that in 4 R. 259 it was expressly held that after an insufficient bond for a suspensive appeal was executed, the lower court has jurisdiction to grant a devolutive appeal, and that in Glover vs. Taylor, 38 An. 634, the court say: “It was submitted to and filed by the clerk in time, as same was done prior to the return day fixed in the order of appeal.”
There is no question of the correctness of that ruling, but it does not militate against the force of the views expressed in our opinion, because the record discloses that there was but one order of appeal granted, and it was in open court, and it only grants “an appeal” in general terms without specifying either a suspensive or devolutive appeal or fixing any amount of bond for either.
The bond first filed is couched in such general terms that we are not able to say whether it is intended to be a suspensive or devolutive bond, the controlling recital being that “whereas the above bounden Charles M. Barrow has obtained an order of appeal from a final judgment,” etc.
The bond last filed is an exact duplicate of the first one, mutatis mutandi.
Had the first bond been a defective suspensive appeal bond, and the second a correct and formal devolutive appeal bond, prepared in conformity to an order of appeal granting both a suspensive and de*483volutive appeal, the ruling in Glover vs. Taylor would have been applicable and the appeal maintained.
Additional objection is urged to the effect that we erroneously entertained appellee’s motion to dismiss for the reason that the competency of a surety on an appeal bond is matter of original jurisdiction for the District Court to determine, and which must be first passed upon by it, otherwise it can not be entertained and decided by this court.
The most effectual answer to that proposition is that in each of the following cases the question of the legal competency of a surety upon an appeal bond arose in this court on a motion to dismiss an appeal, and of which this court had complete and exclusive jurisdiction. Leeds vs. Yeatman, 12 La. 383; Bowman vs. Kaufman, 30 An. 1021; Bauer vs. Locht & Cordez, 30 An. 685.
And it is upon those decisions that our opinion is based, thus making it apparent that the question thus raised and decided was founded on the pleadings and judgment in the record, and which exclusively appertains to the appeal and constitutes it one of law for the determination of this court.
Counsel have cited us quite a number of decisions which he insists are conclusively in their favor and support the proposition they announced. We have examined them all with the following result:
• In Edwards vs. Edwards, 29 An. 597, the question was the insufficiency of the surety, and the court said:
“ As to the sufficiency of the surety on the appeal bond, this court can not notice the objection, because it has appellate jurisdiction only. No objection to the sufficiency of the surety on the appeal bond was made or tried in the court below.”
The same rule was maintained in each of the following cases: Surget vs. Stanton, 10 An. 318; Littleton vs. Pratt, 10 An. 487; Tanner vs. King, 10 An. 485; Wood vs. Harrell, 14 An. 61; Francis vs. Lavine, 26 An. 311; Lafon’s Exe’rs vs. Lafon, 2 N. S. 571; State vs. Judge, 2 R. 449; State vs. Judge, 17 La. 433; State ex rel. Gill vs. Judge, 34 An. 91; Baker vs. Schultz, 35 An. 524.
In those cases the court employed different modes of expression, such as “the sufficiency of the surety,” “the sufficiency of the security ” and the like, clearly indicating that a question of fact was involved which necessitated the administration of proof, and, therefore, one for the court of first instance, and not one of law for the *484decision of the Supreme Court. In the ease of Oharmbury’s succession, 34 An. 21, the dismissal of the appeal was refused mainly for the reason that “the motion was not filed within three days” of the filing of the transcript; consequently the remainder of the opinion is not controlling.
Upon reason and authority we are of opinion that this court has complete jurisdiction to determine the legal eapaeity of a surety on an appeal bond, in any case where the record before us furnishes all the facts that are requisite for decision, and no necessity exists for the administration of further proof, and such is the jurisprudence on the question.
Rehearing refused.