(dissenting) — I concur in that .part of the foregoing opinion which holds the bond sufficient to sustain the appeal. I do not do so, however, on the ground that this bond can be distinguished from others that this court has held insufficient, but because I believe the cases announcing the doctrine that a bond conditioned both as an appeal and supersedeas bond, but sufficient in amount only as an appeal bond, is not good as either, are wrong in principle and should be overruled. In my judgment, a bond sufficient in condition and amount as an appeal bond is good as an appeal bond *275regardless of any conditions looking to the stay of the judgment it may contain. Notwithstanding the statute says they may be included in one instrument, the appeal bond and stay bond are inherently distinct The appeal bond must be given in any event. It is made necessary by statute in order to pier-feet the appeal. The appeal cannot be heard without it. But the stay bond may be given or not as the appellant chooses. If he wishes to prevent execution of the judgment pending the appeal, he may do so by giving a stay bond as provided by statute. But his rights on the appeal are in nowise affected by his failure so to do. Every question open to him will be heard and adjudged whether he gives it or does not give it. Moreover these bonds may be given in separate instruments. The sureties need not be the same on each. And when separately given the one is not affected by the other. Indeed no- court, so far as I have been able to- ascertain, has ever held that an appeal bond sufficient in itself to perfect the appeal and good if standing alone, is rendered nugatory by the filing of an insufficient stay bond. Why then should the appeal bond be affected by the stay bond when both are included in the same instrument? I confess my utter inability to find any reason for the distinction, and finding none I believe the holdings of the court to the effect that there is a distinction are wrong.
I must, however, disagree with the opinion on the merits of the case. I find nothing in the record which warrants this court in censuring either the trial judge, or counsel for the respondent. The trial court in adjudging that the showing made by the appellant was insufficient to authorize it to- set aside the judgment it had theretofore rendered acted upon a matter within its discretion which this court can set aside only for manifest abuse. It is not enough for us to say that, if we had been personally present and the question had been submitted to us, we would have decided it differently; but we must be able to say that the decision is so far wrong that a reasonable mind, acting without prejudice, and having in view *276the just rights of all of the parties, would not have decided it that way. The record, in my judgment, does not enable us to do this. Personally, I cannot even hold that it ought to have been decided differently.
In my opinion, therefore, the motion to dismiss should be overruled and the judgment affirmed.
Eudkot, J.(dissenting) — In Pierce v. Willeby, 20 Wash. 129, 54 Pac. 999, decided more than seven years ago, this court held that a bond on appeal conditioned as both a cost and a supersedeas bond, which was not sufficient for both purposes, was not sufficient for any purpose, and dismissed the appeal. In that case the trial court fixed the amount of the supersedeas in the sum of $200, and a bond in that amount conditioned both as a cost and a supei’sedeas bond was filed. Such a bond was declared insufficient, and I am unable to distinguish that case from the case at bar. An appeal bond comes before this court without issues and without proofs. We must ascertain the intention of the parties and determine the character of the instrument from what appears within the four comers of the bond. The appeal bond before us is clearly both a cost and supersedeas bond, and complies with all the requirements of the' statute governing such bonds, except as to the amount. The argument of the majority, based on the amount of the bond, would apply with equal force in the case of Pierce v. Willeby. The latter case has been followed in numberless cases since the decision was rendered, and it should be followed now or overruled. I do not feel called upon to approve or criticize the ruling in that case. It relates exclusively to a question of practice, and so long as the rule established is uniform, it is as easy to comply with the statute as there construed as with any other construction this court might now adopt. However, if the court desires to overrule Pierce v. Willeby and the long line of cases following it, I will inters pose no objection; but they should not be followed in on? case and distinguished away in the next.
*277I also dissent from what is said on the merits. The majority concede that the appellant was in default, and that the only excuse for such default was the failure of counsel for respondent to notify counsel for appellant of the ruling of the court on a motion to make the complaint more definite and certain. The majority further concede that counsel for respondent were under no legal obligation to give such notice. The trial court held that this was not a case of excusable neglect, and denied an application to open the default and for leave to answer. Applications of this kind are addressed to the sound discretion of the trial court, and I am not prepared to say that an abuse of discretion is shown here. Professional courtesy, undefined and unregulated by law, is a Very uncertain guide, and cannot safely be adopted as a rule of practice in the courts. In the broad sense in which that term is discussed in the majority opinion, it belongs in the domain of morals rather than of law.
I think the appeal should be dismissed or the judgment affirmed.
Dunbab, J., concurs with Rudkin, J.