On Rehearing.
Rudkin, C. J.This was an action to foreclose a lien on a vessel for the purchase price of material used in its construction. The complaint alleged that the owners were about to remove the vessel beyond the jurisdiction of the court, and a receiver was appointed to take charge of the property pendente lite. After the appointment of the receiver, the defendants in the action petitioned the court to release the vessel, upon their substituting a bond in the penal sum of $1,500 in its place and stead. The prayer of this petition was granted and the defendants filed a bond with the appellants herein as sureties, conditioned that the defendants would discharge and perform the judgment of the court in the foreclosure action. The bond also contained this further condition or stipulation:
“It being one of the conditions of this obligation that this bond and the personal liability of the principals and sureties thereon shall be and become and are substituted for any security, or claim which the said Kalb-Glibert Lumber Company may have against said vessel ‘Doris’ aforesaid, her tackle, apparel and furniture, and that said action may proceed in all manner as though said vessel remained within the jurisdiction of the above entitled court, as this bond and the principals and sureties aforesaid, are hereby substituted for and taking the place of said vessel.”
The vessel was released pursuant to this bond, and upon the trial of the action judgment was given against the original defendants and against the appellants as sureties on the bond in the sum of $1,067 and $25 costs of suit. From this judgment the sureties appealed, and the judgment was affirmed in one of the departments of this court, Kalb-Glibert Lumber Co. v. Cram, 57 Wash. 550, 107 Pac. 381, after which a hearing before the court en banc was granted. The appellants were not served with process in the court below, and made no *666appearance in the action, so that the authority and jurisdiction of the court to render judgment against them must be found in the terms and conditions of the foregoing bond. While the cases may not be strictly analogous, a majority of the court are of opinion that the principles announced in O’Connor v. Lighthizer, 34 Wash. 152, 75 Pac. 643, Noble v. Whitten, 34 Wash. 507, 76 Pac. 95, and Davis v. Virges, 39 Wash. 256, 81 Pac. 688, are absolutely controlling here. In O'Connor v. Lighthizer, the lower court gave judgment against the sureties on a cost bond, required of a nonresident plaintiff under Rem. & Bal. Code, § 495, and in discussing the legal effect of such a judgment this court said:
“The only statutory provisions relating to the bond for costs in the superior court of which we have any knowledge, are found in § 5186, Bal. Code. That statute makes no provision for the entry of judgment as of course against the sureties, in the same action in which the bond is filed. Without such express statutory authority as entering into, and becoming a part of, the contract in the bond, whereby the sureties consent to such judgment, we believe judgment cannot be entered against them; and they are not, therefore, parties appearing in the action upon whom notice of appeal is required, within the meaning of § 6504, Bal. Code. Not being persons against whom judgment may be entered as of course by statutory authority, they are entitled to their day in court. An attempt to enter an of-course judgment against the sureties is without notice and void; but one may appeal from even a void judgment for the purpose of having it judicially determined as void.”
In Noble v. Whitten, speaking of the point decided in the Lighthizer case the court said: “It was held that, in the absence of express statutory authority for entering judgment against the sureties, the power to do it does not exist, and that such judgments when entered are void.” In Davis v. Virges, supra, a supersedeas bond was given, conditioned that the appellants would pay the amount awarded by the judgment on appeal, and that, “If the appellants do not make such payment within thirty days after the filing of the remittitur *667from the supreme court, judgment may be entered on motion of the respondents in their favor against the undersigned sureties, for the said sum of $750, together with $45.95 costs, together with $.......interest that may be due thereon, and the damages and costs which may be awarded against the appellants upon the appeal.” After the cause was remitted, the court below entered judgment against the sureties on an oral motion and notice, but that judgment was reversed by this court on appeal. Among other things the court said: “There is no provision of law authorizing the lower court to enter a judgment in this summary way upon a statutory bond given on appeal to. this court.” And, after quoting from the Lighthizer case to the same effect, the court added:
“Counsel for respondents argue that, because the bond provides that judgment may be entered against the sureties upon motion, for the amount due from the principal, therefore the lower court had jurisdiction to enter the judgment as of course. It is sufficient answer to this to say that this bond is a statutory bond. The provision under consideration was not required by statute. Its insertion, therefore, was a mere gratuity which added no legal right nor liability. It was surplusage. If this provision may be held to confer a right to enter a judgment, as of course, without an action upon the contract, the same rule would permit a judgment upon any contract when it is stated that judgment may be taken upon default of the terms of the contract. This can never be a just and equitable rule, and is not permitted. The debtor must be given his statutory notice by summons, so that he may have his day in court.”
It seems to us that the provisions of the bond in that case were broader and conferred greater powers on the court than does the bond now before us. The stipulation that the bond and personal liability of the principals and sureties were substituted for and in the place of the vessel is only what the law would imply in the absence of such a stipulation. In redelivery bonds of all kinds the bond is substituted for the property, but the power to render personal judgment against the *668sureties in such cases is expressly given by statute, whenever the legislature intends that such a power shall exist. In entire harmony with our own decisions on this question, see: Selby v. McQuillan, 45 Neb. 512, 63 N. W. 855; Campbell v. May, 31 Ala. 567; Garrott & Brooks v. Fuller, 36 Ala. 179; Creanor v. Creanor, 36 Ark. 91; Walker v. Walker, 42 Ga. 141.
In Walker v. Walker, supra, the court said:
“Can judgment be entered up against the securities on the bond given in this case, at the same time with the rendition of the decree against the principal? This is an important question, and we have considered it carefully upon principle and authority.
“The Code, section 3243, in cases of attachment, provides for replevy bond, and that ‘it shall be lawful for the plaintiff to take judgment against the defendant and his securities upon said bond.’ Section 3513 declares: ‘In all cases of appeal, where security has been given, the plaintiff, or his attorney, may enter up judgment against the principal and surety jointly and severally.’ Section 3488 provides, in cases of bonds given to dissolve garnishment, ‘the plaintiffs may enter up judgment, upon such bond against the principal and securities, as judgment may be entered against securities upon appeal.’ Section 3982 makes provision in cases of bond given on issuing certiorari, that the security on said bond shall be liable as securities on appeal. And such special provision is made in relation to matters arising on writ of error where bond is given, and in matters appealed from the Ordinary: Section 3563.
“But in this case the law is silent, and we are, therefore, left to the principles of the common law, except by reason and analogy we are enabled to bring the case within the application of the sections quoted. Upon the proposition of law found in 1st Kelly, 72, we may conclude that the amount found against the principal is the amount fixed against the sureties, and why multiply suits to settle what may be regarded beyond controversy. The spirit of the law is to disencumber legal rights from unnecessary formalities, and to apply the principle would be easy and embrace all cases standing under the provisions of securities. But no matter how *669simple the process, or how apparently reasonable, to accomplish it, it requires a legislative, not a judicial act. We have no power, as a court of errors, to make law; the limitation of construction is to laws existing. And inasmuch as at common law no such provision exists and our code does not provide legislation to embrace it, every reason fails to invoke its exercise upon our part.”
It has been argued that this is an equitable proceeding, and that the law actions cited have no application. We do not think that any such distinction exists. It will be conceded that a court of equity may proceed in a more summary manner to fix and enforce the liability of sureties on bonds given in judicial proceedings before it, but the essential requirement of notice and opportunity to be heard may not be entirely dispensed with. Where the statute provides that judgment may be entered against the sureties, the statute enters into and forms a part of every bond taken under its provisions, and the judgment finds its warrant in the statute and not in the contract. Statements will be found in some cases to the effect that judgment may be entered against sureties when there is a specific provision in the bond or by statute or rule of court to that effect, such as Russell v. Farley, 105 U. S. 433; but with us as held in the Davis case, supra, a mere simple contract cannot authorize the entry of a judgment against the obligor without previous notice or trial. In the absence of statute, such a stipulation would at least require the formalities demanded by our statute for a confession of judgment. If the question were an open one, we would feel disposed to hold that the sureties might be brought into the original action by any reasonable notice, such as a show cause order; but the question is one of practice only, and we will follow the rule announced in the Davis case, namely, that the parties can only be brought in by summons. From what we have said, it follows that the judgment against the sureties must be reversed and the cause remanded for further proceedings. It is so ordered.
Fullerton, Morris, Gose, and Chadwick, JJ., concur.