(dissenting) — I am unable to concur in the foregoing opinion. I am afraid the holding on the motion to dismiss is going to lead to some embarrassing results. This court has heretofore held that it is necessary to serve the surety of a party with notice of appeal because the surety, by becoming such, becomes an independent party litigant to the action. Shippen v. Shippen, 91 Wash. 610, 158 Pac. 247, and the cases there cited. Indeed, it would seem that there *532could be no other logical ground upon which the holding can rest. If he does not become a party litigant to the action by becoming a surety, there is no necessity of service upon him; or, if he becomes such a party and is represented by his principal, then service upon the principal is service upon him. While the court in the present decision overrules all of our long line of cases holding it necessary to serve a surety where the judgment against him does not exceed two hundred dollars, or where, by the terms of his obligation, a judgment cannot be taken against him for an amount in excess of two hundred dollars, it does so, not on the principle that the surety is not a party litigant in the action or that he is represented by his principal, but on the ground that, under the constitutional limitation, no appeal will lie from a judgment where the amount of the judgment or the amount in controversy does not exceed two hundred dollars. In other words, it is held that a judgment against a surety is final where the amount of the recovery against him does not exceed two hundred dollars.
We, therefore, have this situation. If A sues B in some form of proceeding where he is obligated to give security for costs in an amount which does not exceed two hundred dollars and” fails in his action, judgment of dismissal and for costs will be entered against bim, and a judgment for costs will be entered against his surety. A can appeal because of the judgment against him on the merits of the action. The surety cannot appeal because the judgment is final as to him. If A succeeds on his appeal, the cause will be reversed on the merits, which reversal will carry with it a reversal of the judgment for costs entered against him. But under the present decision, namely, that the judgment against the surety is final, it will not carry a re*533versal as against the surety. Other results must also follow. If A does not represent the surety on the appeal,' and the surety cannot appeal in his own right, A cannot supersede the judgment against the surety, and execution may be issued against the surety for the costs while the appeal of the principal is pending. Again, the surety’s liability, as between himself and his principal, is, of course, only secondary, and he can recover over, against the principal for costs he is compelled to pay; costs which, under the final judgment of the court, the principal is not, as against the party recovering them, obligated to pay.
It may be that the court will find some way to escape these results when the questions are presented to it, but I can now conceive of no possible way unless it is to be held that a final judgment is not always final, or that a party who cannot himself appeal from a final judgment against him, can vicariously benefit from an appeal by another. It is true, the statute provides that any party who does not join in the appeal of another shall not derive any benefit from the appeal of the other “unless from the necessities of the case.” But this statute does not have application to judgments of the sort here in review. Where two -parties are held jointly bound by a single money judgment, and one of them appeals and relieves himself therefrom, the other is not relieved; and, especially is this so where the judgment is not appealable as to the other. There must be something wrong with a rule which leads to such anomalous results as these. In my opinion, the error lies in holding that a surety for costs becomes a party to the action. For this conclusion, I was never able to discover any foundation either in the statutes or in reason, and I, long ago, registered my dissent to the rule. Had the court, therefore, rested its decision *534on this ground, it would have received nay hearty approval, but I cannot assent to a doctrine which seems to me to further involve an already too much involved situation.
The merits of the controversy I shall not argue, although an examination of the record has convinced me there is much room for a different conclusion than the conclusion reached by the majority.
Main, C. J., concurs with Fullerton, J.