(dissenting)— If the appellants had made no appearance in this case, we might agree with the conclusion reached by the majority opinion at this time. But, as stated in the opinion rendered upon the former hearing, and reported in 57 Wash. 550, 107 Pac. 381, the appellants voluntarily appeared in the case before they were substituted for the vessel. They executed a bond by which they agreed that they might be “substituted for and take the place of said vessel.” Thereupon a petition which included the bond was filed, asking the court to make a substitution, and by reason of that petition and the appearance of the appellants at that time, an order of substitution was made and the vessel was released. The vessel was in possession of and within the jurisdiction of the court.
The appellants were in court and said, in substance: “Take us and take our property in place of said vessel. Release the. vessel so that it may leave the jurisdiction of the court. Our property will stand in its stead.” Thereupon, over the obj ection of the respondent and solely by reason of the representations that the bond and personal liability of the appellants, “shall be and become and hereby are substituted for any security or claim which the said plaintiffs . . . may have' against said vessel,” the court made the order of substitution.
In the face of these declarations, and in the face of the fact that the vessel was thereby released and left the jurisdiction of the court and changed the status of the case, should the appellants now be heard to say that they have not appeared in the case, that they were not substituted for the vessel, and did not take the place of the vessel, and that the only remedy which the respondent now has is another suit upon the bond?' It is true, that the bond given in this case was not a statutory bond. The court was not required to substitute the bond for the vessel. Whether he should do so or not was within his discretion. If before the substitution was made the court had-supposed that the filing of the bond was not the personal appearance of the appellants, and the personal liability of the *671sureties could not be made to take the place of the vessel without another action against the appellants, we have no doubt the order would not have been made. For no just judge would release the vessel under the circumstances here disclosed, and without any accruing benefit thereby, drive the respondent to another action in order to secure the fruits of its litigation then pending. The trial judge and all the parties to the action supposed that the appellants had appeared in the action and could be substituted for the vessel, for the petition was to that effect. The order made upon the petition was to that effect. The bond itself was to that effect; and the court, at the end of the case, rendered judgment against appellants instead of the vessel. The fact that the appellants had appeared in the case no doubt influenced the discretion of the court to grant the order. The appellants having appeared and become parties to the action, the judgment was properly rendered against them and should be affirmed.
We therefore dissent.