of Ninemire & Morgan, and in his return made it appear that he had sold the property subject to Hamilton's lien; and that Holloway was present, neard the aforesaid representation, and made no objection thereto. But, even upon that state of facts, it is difficult to understand why Holloway should receive nothing upon his judgment and decree, or why the sheriff should be restrained from executing the order of sale in the foreclosure proceedings. If the sheriff agreed to pay off and discharge Holloway's judgment with the proceeds of the sale of the very property upon which Holloway relied for security, why should Holloway have objected to the sale? All he desired was payment, and it made no difference to him whether Ninemire & Morgan sold the property and paid him, or whether he sold it himself, as he had a right to do under his decree of foreclosure, in satisfaction of his claim. Moreover, Holloway had no right to object to the sale of Hiatt's interest, for the law gave Ninemire & Morgan the right to sell that upon their execution, and there is no evidence that Holloway ever intended for a moment to relinquish his lien without payment of his claim. He even testifies that he notified Hamilton's agent not to buy the property unless he paid off the mortgage, and there is no evidence disputing him. Under these circumstances, to say that, because he did not further object to the sale, he thereby forever relinquished his lien, would be to extend the doctrine of estoppel by acquiescence beyond the limits of justice, equity, or reason. Valid liens should not be thus lightly set aside. If Hamilton expected that Holloway's mortgage would be paid out of the sum bid by him, why did he not make some effort to have it so applied? He says he relied upon the undertaking or representation of the sheriff, but he ought to have known, and is presumed to have known, that the sheriff, under the law, could not receive money on an execution in one case and pay it out in satisfaction of a judgment in another case with which he at the time had nothing whatever to do. The order of sale was not in his hands at that time, and he would have been guilty of official misconduct if he had made such an application of the funds. The law required him to pay it to the clerk of the court, and he did so, and returned the execution accordingly. 2 Hill's Code, §§ 467, 469, 507. Although he did all the law required him to do, he is nevertheless commanded by the decree of the court to pay a sum of money which is not in his possession or under his control and which he has no means of recovering, to his codefendant, Holloway, who did not ask for, and is not entitled to, any such relief. We are aware of no power or authority in the courts to compel a sheriff, or any other person, to do that which is contrary to law, even if he may have promised to perform the illegal act. But the fact is, the evidence does not show that the sheriff himself ever represented to the respondent v.41P.no.8-58 that the proceeds of the sale would be applied to the discharge of the Holloway decree and lien. If any such representations were made at all, they were made by the deputy sheriff, and were no part of his official acts or duties, and amounted to a personal engagement on his part for which the sheriff was in no way responsible. If the respondent is in such a position that he can show that he was damaged by the representation of the deputy, he must look to him for indemnity, and not to the sheriff. Marshall v. Hosmer, 4 Mass. 60; Waterhouse v. Waite, 11 Mass. 207; Tobey v. Leonard, 15 Mass. 200; 5 Am. & Eng. Enc. Law, p. 635, note 1. It is said, however, that appellant Holloway was guilty of such laches, in withholding his order of sale for a period of five months, that it would now be inequitable to permit him to avail himself of it. But we fail to see any force in this suggestion. Our statute provides that execution may issue on a judgment of a court of record at any time, provided that, after the lapse of five years, the judgment must first be revived in the manner provided by law. 2 Hill's Code, § 464. An order of sale is, in effect, merely an execution. How, then, can it be said that such an order shall be of no effect or validity simply because, in the opinion of some one, it might, or ought to, have been issued at an earlier date? There is, manifestly, no merit in such a proposition. Upon the case made by the pleadings and proofs, it appears clear to us that the respondent is entitled to no relief in this action. The judgment will therefore be reversed, and the cause remanded, with instructions to dismiss the complaint. 1. Act March 8, 1893, § 4, provides that a party desiring to appeal to the supreme court may give notice in open court when the judgment is rendered. Code Proc. § 379, provides that, on trial of an issue of fact by the court, its decision, separately stating the facts found and conclusions of law, shall be given in writing, and filed with the clerk, and judgment on the decision shall be entered accordingly. that in such a case judgment is not "rendered" till the findings and judgment, or at least an order for judgment, are filed with the clerk; the signing and dating of the findings is not enough. Held, 2. Under Act March 8, 1893, § 6, declaring that an appeal shall be ineffectual unless an appeal bond be filed in the superior court within a certain time; and section 10, declaring that an appeal bond shall be of no force unless accompanied by the affidavit of the sureties, containing statements as to their responsibility,-appeal is ineffectual where there is no accompanying affidavit. Dunbar, J., dissenting. 3. The supreme court cannot, in the absence of statutory authority, allow amendment of an appeal bond or the giving of a new one. Appeal from superior court, Garfield county; R. F. Sturdevant, Judge. Action by the Northern Counties Investment Trust, Limited, against Henry Hender and wife, to foreclose a mortgage. Judgment for defendants. Plaintiff appeals. Appeal dismissed. S. G. Cosgrove and M. M. Godman, for appeliant. M. F. Gose, for respondents. ANDERS, J. The respondents move to dismiss the appeal, for the alleged reason that the court has no jurisdiction to hear and determine the matters in controversy. The specific grounds for dismissal set forth in the motion are that no notice of appeal has been given, served, or filed herein as by law required; that the appeal bond is not in form or substance such as to render the appeal effectual; that the pretended bond filed herein is void, because none of the makers of said bond have justified as by law required, or at all; and that the guardian ad litem of defendant, Henry Hender, has not been made a party to the appeal, and no notice of the appeal has been served upon him. judgment was not rendered at chambers; the latter ground being based on the untenable proposition that the notice in open court or before the judge is limited to judgments or orders rendered or made at chambers. The action was brought to foreclose a mortgage, and was tried by the court without a jury. The record discloses the fact that the appeal bond and the motion for a new trial were filed on September 12, 1894. It further appears that the notice of appeal was given at the time when the motion for a new trial was overruled, and when the court ordered judgment to be entered in favor of the defendants in accordance with the findings of fact and conclusions of law theretofore made. The statute, it will be observed, requires the notice of appeal, if given in open court, to be given at the time when the judgment or order appealed from is rendered or made, and the question is, when was the judgment and decree rendered in this case? The court made findings of fact and conclusions of law in accordance with section 379 of the Code of Procedure, which is as follows: "Upon the trial of an issue of fact by the court, its decision shall be given in writing and filed with the clerk. In giving the decision, the facts found and the conclusions of law shall be separately stated. Judgment upon the decisions shall be entered accordingly." The findings and the conclusions of the court, as well as the judgment based thereon, were dated September 11, 1894; and it is urged on behalf of the respondents that the judgment was rendered on that date, and that, therefore, the notice which was not given at that time was too late to effect an appeal. The record, however, discloses that neither the It is provided in section 4 of the act of March 8, 1893, relating to appeals to the supreme court (Laws 1893, p. 120), that "a party desiring to appeal to the supreme court under the provisions of this act may, by himself or his attorney, give notice in open court or before the judge, if the judgment or order appealed from is rendered or made at chambers, at the time when such judgment or order is rendered or made, that he appeals from such judgment or order to the supreme | findings of fact, conclusions of law, nor judgcourt, and thereupon the court or judge shall direct the clerk to make an entry of such notice in the journal of the court. If the appeal be not taken at the time when the judgment or order appealed from is rendered or made, then the party desiring to appeal may, by himself or his attorney, within the time prescribed in section three of this act, serve written notice on the prevailing party or his attorney that he appeals from such judgment or order to the supreme court, and within five days after the service of such notice shall file with the clerk of the superior court the original or a copy of such notice, with proof or the written admission of the service thereof, and thereupon the clerk shall enter such notice, with the proof or admission of service thereof, in the journal of the court." It is conceded that the notice of appeal was given in open court, and the record shows that the notice was entered in the journal of the court by order of the judge. It was given in strict conformity to the statute, and there is no objection to it on the ground of informality. But the respondents insist that the notice was ineffectual, because it was not given at the time the judgment appealed from was rendered or made, and because said ment were filed until the 12th of September; and, inasmuch as the statute requires the decisions of the court in cases tried without a jury to be given in writing and filed with the clerk, it follows that the judgment was not rendered until it was filed in accordance with the order of the court. It is not the mere signing of the findings, but the filing, that is essential to the decision contemplated by the statute. The action was not determined until the findings and judgment, or at least an order for a judgment, were filed with the clerk. This is evident from the fact that, at any time before filing, the findings might have been changed by the court. or new findings substituted. See Comstock Quicksilver Min. Co. v. Superior Court, 57 Cal. 625, and Adams v. Nellis, 59 How. Prac. 385. As the notice of appeal was given at the time when the court ordered judgment to be entered, it follows from what we have said that it was given within the time contemplated by law; that is, when the judgment was actually rendered. But we are forced to the conclusion that the objection to the appeal bond is well taken, and that the appeal was not perfected in the manner prescribed by law. The bond filed by appellant in the court below was properly conditioned to effect the appeal, but as it was not accompanied by the affidavit of the sureties required by section 10 of the act of March 8, 1893, or by any affidavit whatever, it was absolutely without force, and was therefore, in effect, no bond at all. Section 6 of the act above mentioned provides that "an appeal in a civil action or proceeding shall become ineffectual for any purpose unless at or before the time when the notice of appeal is given or served, or within five days thereafter, an appeal bond to the adverse party conditioned for the payment of costs and damages, as prescribed in section seven of this act, be filed with the clerk of the superior court, or money in the sum of two hundred dollars be deposited with the clerk in lieu thereof. * * And in section 10 it is declared that "an appeal bond, whether conditioned so as to effect a stay of proceedings or not, shall be of no force un less accompanied by the affidavit of the surety or sureties therein, attached thereto, in which each surety shall state that he is a resident of this state and is worth a certain sum mentioned in such affidavit, over and above all debts and liabilities, in property within this state, exclusive of property exempt from execution, and which sums so sworn to by the surety or sureties shall be at least equal to the penalty named in the bond if there be but one surety, or shall amount in all to at least twice such penalty if there be more than one surety." In Marshaw v. McDowell, 89 N. C. 181, the court held that language similar in substance to that used in these sections was not directory merely, but mandatory, and that an appeal must be perfected in accordance with the requirements of the statutes or it will be dismissed. That the affidavits of sureties required by statute must accompany the bond to give it validity seems to be the settled doctrine of the courts. See Bryson v. Lucas, 85 N. C. 397; Bailey v. Rutjes, 91 N. C. 420; State v. Wagner, Id. 521; Turner v. Quinn, Id. 92; Anthony v. Carter, Id. 229; Holcomb v. Teal, 4 Or. 352; Alberson v. Mahaffey, 6 Or. 412; State v. McKinmore, 8 Or. 207; Pencinse v. Burton, 9 Or. 178. It is true that this court, actuated then, as now, by the desire to hear every case upon its merits, declined to dismiss the appeals in McEachern v. Brackett, 8 Wash. 652, 36 Pac. 690, and Warburton v. Ralph, 9 Wasn. 537, 38 Pac. 140, and perhaps some other cases, in which the affidavits were defective in not stating some one of the particular things mentioned in the statute. In so do. ing, we were certainly more liberal than some other courts have been under similar provisions of law, and, perhaps, went beyond the strict letter of the statute. But, be this as it may, we here have a bond unaccompanied by any affidavit whatever, not one with a defective or informal affidavit merely, and hence this case is distinguishable from those above mentioned, and must be deter mined on the facts presented and the law applicable thereto. The law says that the bond before us is of no force, and it is the plain duty of the court to so declare it. To remedy the difficulty confronting them, the learned counsel for the appellant have tendered, and asked to have filed, in this court, a new bond, accompanied by a proper affidavit of the sureties. Whether such a bond as the law requires to be filed in the trial court within a limited time, can, after the expiration of that time, properly be filed in this court, is a question the solution of which depends upon the authority conferred upon the court to correct or supplement the record of the court below. This is an appellate tribunal, so far as this and kindred cases are concerned, and it can amend the records sent up to it for review only in so far as it is thereunto authorized by statute. Accordingly, it is stated in 1 Enc. Pl. & Prac. p. 993, that appellate courts cannot allow a substantially defective appeal bond to be amended without statutory authority, and the cases cited seem ample to sustain the proposition. What, then, is the statutory authority of this court in respect to the matter before us? It has authority to allow all amendments in matters of form curative of defects in appellate proceedings (Laws 1893, p. 129, § 19); but the defect under consideration is not merely one of form, but of substance, and therefore that provision does not meet the present emergency. Again, we are directed to disregard all technicalities. and hear, upon their merits, all cases brought before the court in the manner provided by law. But that cannot be said to be a technicality which goes to the substance of the appeal. In fact, by the express terms of our statute, this court only acquires jurisdiction of an appeal upon the taking of an appeal by notice as therein prescribed, and the filing of a bond to render the appeal effectual. Laws 1893, p. 128, § 16. As we have seen, the bond filed to render the appeal effectual in this instance was without force, and it may well be said that this court has not acquired jurisdiction to hear this appeal. The filing of the bond to perfect the appeal was just as necessary as the giving of notice of the appeal within the time limited, and the one can no more be dispensed with than the other. Works, Courts, p. 734. In many of the states provision is made by law for the amendment of a defective appeal bond or the giving of a new one, but we find no such provision in our statute, nor any provision or provisions which can be construed as giving the court the power to allow the filing of a new bond, under such circumstances as appear in this case. The appeal must be dismissed, and it is accordingly so ordered. GORDON and SCOTT, JJ., concur. HOYT, C. J. (concurring). In my opinion. the conclusion of the majority of the court is inconsistent with the holding in McEachern v. Brackett, 8 Wash. 652, 36 Pac. 690, and Warburton v. Ralph, 9 Wash. 537, 38 Pac. 140, referred to therein, and I think the better practice. would have been to retain this case for hearing upon the merits, upon the authority of those. A construction of a statute relating to practice announced by this court should control decisions made thereafter, as certainty is the important thing. However, as the conclusion of the majority in this case is, in my opinion, the correct one, as shown by my dissent from the opinions in the cases above referred to, I am content to concur in the result. DUNBAR, J. (dissenting). I fully indorse what Chief Justice HOYT has said in the first paragraph of his concurring opinion, concerning the importance of uniform holdings on questions of practice; and, as I am satisfied with the rule laid down in the former decisions of this court above referred to, I am compelled to dissent from the conclusion reached by the majority in this case. (12 Wash. 629) STATE ex rel. RUTH v. PRATHER et al., Board of County Commissioners. (Supreme Court of Washington. Sept. 27, 1895.) HIGHWAYS-RECORDING SURVEYS. Sec Laws 1895, c. 77, § 8, provides that all field notes shall be collected by the surveyor, perfected, and recorded in his office, in the same manner as records of surveys are required to be made by the provisions of this act. tion 5 provides that each county surveyor shall record in a suitable book all surveys made by him and his deputies, except such as are made for a temporary purpose and surveys of highways and village plats. Held, that a county surveyor has no authority to record notes and surveys of highways. Gordon, J., dissenting. Appeal from superior court, Thurston county; T. M. Reed, Jr., Judge. Petition for mandamus by the state, upon the relation of A. S. Ruth, against Thomas Prather and others, constituting the board of county commissioners. From a judgment for petitioner, defendants appeal. Reversed. Milo A. Root, for appellants. Troy & Falknor, for respondent. DUNBAR, J. This case involves simply the construction of a statute, and admits of very little discussion. We think, however, that construing section 8, c. 77, Laws 1895 (which provides that "all field notes," etc., "shall be collected by the surveyor, perfected and recorded in his office in the same manner as records of surveys are required to be made by the provisions of this act"), in connection with section 51 of the same act (which ex 1 Laws 1895, c. 77, § 5, is as follows: "Each county surveyor shall record in a suitable book all surveys made by him and his deputies, except such as are made for a temporary purpose, and surveys of highways and village plats." cepts, from the record which the surveyor is authorized to make, surveys of highways), the construction placed upon the statute by the lower court is not justified, and that the exception in section 5 ust be considered to apply also to the provisions of section 8. The judgment will be reversed, and the cause remanded to the lower court, with instructions to sustain the demurrer to the complaint. HOYT, C. J., and ANDERS and SCOTT, JJ., concur. GORDON, J., dissents. (12 Wash. 536) CHAPIN v. KENOYER et al. (Supreme Court of Washington. Sept. 10, 1895.) SUPREME COURT-JURISDICTION. Where lumber upon which plaintiff claimed a lien was removed by defendant, and rendered incapable of identification, the action is one for damages, and the supreme court has no appellate jurisdiction thereof if the amount involved is less than $200. Appeal from superior court, Whatcom county; John R. Winn, Judge. Action by E. S. Chapin, by W. W. Chapin, his next friend, against John Kenoyer and others, to recover for services rendered. Plaintiff had judgment, and certain defendants appeal. Dismissed. Black & Leaming and Burke, Shepard & Woods, for appellants. Bruce, Brown & Cleveland, for respondent. SCOTT, J. The plaintiff began an action, alleging, in substance, that the defendants Kenoyer employed him to render services in the manufacture of timber into shingles, and that pursuant thereto he performed labor for said defendants in manufacturing about 150,000 shingles, and that there was due him therefor the sum of $96.91, for which he was entitled to a lien upon the shingles manufactured; and that he had filed the necessary notice of such claim, but hat the defendants Underwood and the Great Northern Railway Company, having full knowledge of his rights, did, without his consent, remove, eloign, and take away 145,000 of said shingles, and rendered the same impossible of identification, without paying the amount of his claim; and he prayed judgment therefor, with interest and attorney's fees, against the contractors, and also against the other defendants, under the provisions of section 20, p. 434, Laws 1893. Issue was joined, and a trial had, and judgment rendered for the plaintiff in the sum of $137.90. Thereafter the defendant the Great Northern Railway Company petitioned the court to set aside said judgment, which petition, after hearing, was denied, whereupon the defendant last named and the defendant Underwood appealed from the original judgment in the action, and also from the judgment of the court denying the petition to vacate. When the cause was called for argument here a motion was made by the respondent to dismiss said appeals, on the ground that this court had no jurisdiction thereof, the amount in controversy being less than $200. We think this motion well taken. The property having been removed, and rendered impossible of identification, the action was substantially one for damages. Dismissed. HOYT, C. J., and ANDERS, GORDON, and DUNBAR, JJ., concur. (12 Wash. 588) STATE ex rel. DODGE ▼. LANGHORNE, Judge. (Supreme Court of Washington. Sept. 19, 1895.) MODIFICATION OF JUDGMENT. After the relator interpleaded in an insolvency proceeding, and recovered judgment on an interest in a fund arising from another judgment which had been assigned to him by the assignors, the court cannot, upon the petition of a witness in the action wherein said fund was recovered, modify the judgment in favor of relator so as to compel relator to pay to said witness his fees, though there was an agreement between said assignors and relator that the relator was to pay a portion of the costs. Petition by the state, upon the relation of P. H. Dodge, for writ of prohibition to restrain W. W. Langhorne, judge, from taking any further proceedings in the matter of enforcing a certain order. Writ issued. Edward F. Hunter, for relator. & Stewart, for respondent. Reynolds This ANDERS, J. In March, 1891, P. H. Dodge, the relator herein, recovered judgment in the superior court of Lewis county, against Box & Rhodes, known as the Chehalis Shingle Company, for the sum of $1,338.85 and costs. On July 27, 1891, the shingle company satisfied that judgment by assigning to the relator a one-third interest in an unliquidated claim for damages which they had against the firm of Webster, Kelso & Dare. Subsequently, and according to agreement between the relator and the Chehalis Shingle Company, the latter commenced an action in the superior court against Webster, Kelso & Dare to recover the amount of their claim. action resulted in a judgment for the plaintiffs for the sum of $1,378 and costs, taxed at $229.90, which judgment was rendered July 29, 1892. On March 7, 1893, the judgment and interest were paid in full by the defendants, and then amounted to $1,829.76. During the pendency of this action the Chehalis Shingle Company made an assignment for the benefit of their creditors, under the state insolvency law, and one Newland was appointed assignee. There being a disagreement between the relator, the assignee, and some other parties as to the relator's interest in this fund, the whole thereof was, by order of the court, delivered to the clerk to be held for future distribution. On March 13. 1893, the relator herein commenced an action, which he termed an intervention, but which was more in the nature of an interpleader, to recover the one-third interest in the amount of this judgment which he claimed under the assignment from the Chehalis Shingle Company; and on June 30, 1893, he recovered a judgment for the sum of $632.54, which sum was accordingly paid him by the clerk of the court. By agreement between the relator and the Chehalis Shingle Company, the relator was to pay one-third of all the costs and expenses of the suit against Webster, Kelso & Dare, and the judgment which he recovered in the proceeding in intervention included certain witness fees which he alleged that he had theretofore paid. The judgment and decision of the court in favor of the relator was not appealed from by any of the parties interested in the proceeding, but on January 26, 1894, one James McAndrews presented to the judge of said court a petition reciting that he was a witness for the plaintiff in the action brought by the Chehalis Shingle Company against Webster, Kelso & Dare, and that his fees, charged up in the cost bill in that action, and to which he was entitled, amounted to the sum of $58.20, which sum has not been paid to him, or any part thereof, except the sum of $23.75, which was paid to him by said Chehalis Shingle Company October 26, 1891; that said Dodge wrongfully claimed and received from the clerk of this court the sum of $58.20, witness fees belonging to petitioner, and that he had not since paid to the petitioner the said sum of $58.20, or any part thereof; that of the amount so wrongfully withdrawn from the registry of the court by the said Dodge, the sum of $34.45 belonged to and should be paid to your petitioner; and the petition prayed for an order directing said Dodge to return into court said sum of $58.20, withdrawn by him, and that the court order and direct that the amount due to this petitioner for his witness fees, when paid into court, be paid to the petitioner. This petition was verified by the said James McAndrews. The judge of said court thereupon made an order directing the relator to appear before the court on February 5, 1895, to show cause why the prayer of said petition should not be granted, and further ordered and directed that a copy of the order should be delivered to the relator, or to his attorney, Edward F. Hunter. In accordance with the order of the court, a copy of the petition and order was served upon the attorney for the relator on January 26, 1894, as shown by his admission indorsed on the original petition and order. On February 5, 1894, the relator, by his attorney, filed a motion to quash the court's citation, on the grounds (1) that same was not issued in the name of the state of Washington; (2) that it is not signed by the clerk of said court; and (3) that it has not the seal of the court. The relator appeared specially for the purpose of |