On Motion to Correct Remittitur.
[Decided March 18, 1916.]
Ellis, J.This case comes back to us on motion of appellant to recall and correct the remittitur. The original decree awarded a judgment on default against the mortgagors, Church and wife, for $450 and interest, and a foreclosure of respondent’s mortgage; a judgment against Richardson and wife, also on default, barring their alleged claim in the property; and a judgment against the railroad company, barring any interest in the mortgaged property except its right of way, and for costs amounting to $18.80. The decree was affirmed on appeal. The remittitur contains the following:
“It is ordered that the said Gordon L. Simmons have and recover of and from the said Northern Pacific Railway Co. and from the National Surety Co. as surety the sum of Five Hundred Fifty Seven and 40-100 with legal interest thereon from August 10, 1914, until paid, and the costs of this action taxed and allowed at Forty Six and 90-100.”
Notice of appeal, exclusive of caption and signature, was as follows:
“The above named plaintiff is hereby notified that the defendant, the Northern Pacific Railway Company, appeals to the supreme court of the state of Washington from the judgment entered in said cause in favor of the plaintiff on or about the 10th day of September, 1914, and as modified by order entered September 14, 1914.”
The supersedeas bond, which is also conditioned as an appeal bond, is in the sum of $1,700, which—less the $200 security for costs—is more than double the amount of the money judgment. This bond was executed by the appellant *390railway company as principal and the National Surety Company as surety. It is conditioned as follows:
“The condition of this obligation is such, that whereas the defendant above named desires to appeal to the supreme court of the state of Washington from the judgment, and the whole and every part thereof, recovered and entered in the above court and cause in favor of the plaintiff and against the defendant, Northern Pacific Railway Company, on the 10th day of September, 1914, and modified by an order entered September 14, 1914.
“Now, therefore, if the above bounden principal shall pay to the said plaintiff above named all costs and damages that may be awarded against it on the appeal, or on the dismissal thereof, not exceeding the sum of $200, and shall satisfy and perform the judgment appealed from in case it shall be affirmed, and any judgment or order which the said supreme court may render or make, or order to be rendered or made by the above court, then this obligation shall be void, otherwise to remain in full force and effect.”
Appellant contends, as was contended in Rogers v. Minneapolis Threshing Machine Co., 48 Wash. 19, 92 Pac. 774, 95 Pac. 1014, that the record indicates that the appeal was taken merely to determine its rights in the land; that it therefore involved a part of the judgment only; that appellant was never personally liable for the debt secured by the mortgage, hence neither it nor its surety in the supersedeas bond should be subjected to a money judgment other than for costs. It is urged that the case is governed by the early decision in Titlow v. Cascade Oatmeal Co., 16 Wash. 676, 48 Pac. 406. In that case the contest was for title to the note and mortgage in suit, between the appellant Richards, who claimed as assignee from a bank, and Titlow, the receiver of the bank, who claimed that the assignment to Richards was in fraud of creditors. The title to the note was decreed to the receiver, and he was awarded a personal judgment against the maker of the note and a foreclosure of the mortgage. The original record in the Titlow case is not here, but it is pointed out in the briefs that:
*391“Richards took an appeal from so much of this decree as adjudicated that the transfer to him was void, and that Titlow as receiver was entitled to the note and mortgage and to foreclosure; to so much ás directed a sale of the property by the sheriff; to so much as directed the sheriff to pay over the proceeds of the sale to the receiver; and to so much as decreed a foreclosure.”
The receiver moved in this court for judgment on the supersedeas bond for the full amount of the money judgment. This court denied the motion, saying:
“It is true that a strict construction of the statute might support the respondent’s contention. But it seems to us that it would be too narrow a construction to hold that a party who desired to appeal from any portion of the judgment must be held responsible on his bond for the full amount of the judgment rendered in the court below, for which he was in no way responsible before the appeal was taken. To be sure, the appellant stays the proceedings, but it may be necessary for him to do that to preserve the fruits of his appeal, should he succeed.”
Plainly, the denial of the motion was because the appeal was not from the whole judgment. The appeal in the case before us was simply “from the judgment entered in favor of the plaintiff,” not from any distinct part of it as in the Titlow case. It seems to us that this case is clearly ruled by the decision in Rogers w. Minneapolis Threshing Machine Co., supra, in which, though the appellant machine company was not originally liable for the money judgment, the remittitur directed a judgment on the supersedeas bond because the notice of appeal was from the whole judgment and not from any specific part of it.
The appellant here attempts to show that the Titlow case rather than the Rogers case, controls the case before us, by seeking a distinction between the Titlow case and the Rogers case, in that, in the latter, which involved a contest for priority between mortgages, the appellant was directly interested in the application of the proceeds of the sale of the *392mortgaged premises. But so, also, was Richards, the appellant in the Titlow case, not only interested in the application of the proceeds of the sale, hut he was claiming the right to the entire proceeds as owner of the mortgage itself. Obviously, the distinction sought to be made is a distinction without a material difference. The only real distinction is that expressly pointed out by this court in the Rogers case, where, speaking of the Titlow case, it is said:
“The appeal was, however, expressly taken from a portion of the judgment only, and any stay of proceedings which resulted was merely incidental thereto. Here, however, the appeal was expressly taken from the whole judgment, the amount of the bond necessary to stay the whole judgment was asked and fixed, and the b.ond upon its face shows that it was given for that purpose, a fact known at the time to both the appellant and its surety. The bond in all respects complies with the requirements of Bal. Code, § 6506 (P. C. § 1054) where it is sought to stay the whole judgment. The same section provides that, if it is intended to stay proceedings on only a part of the judgment, the bond shall be so varied as to secure the part stayed alone. Such was not done here, but proceedings under the whole judgment were entirely stayed. Respondents were not only precluded from effecting a sale of the mortgaged premises, but they were also prevented from enforcing their respective shares in the personal judgment by means of ordinary execution.”
So here, the appeal was taken from the whole judgment, and the bond in terms recited that the appellant desired to appeal “from the judgment and the whole and every part thereof,” and was conditioned in all respects as required by' Rem. & Bal. Code, §1722 (P. C. 81 §1195; Bal. Code, § 6506), where it is sought to stay the whole judgment.
The appellant also seeks to point a distinction in that it was said in the Rogers case that respondents were precluded from issuing an ordinary execution. But it is obvious that they were so precluded only because the notice of appeal and the supersedeas bond stayed the whole judgment. *393If these things had that effect in the Rogers case, plainly they have the same effect in this case. A close scrutiny of the two decisions demonstrates that there is no material distinction which can be found between the Titlow case and the Rogers case which does not exist, also, between the Titlow case and this case. Such a scrutiny also demonstrates that there is no sound distinction between the Rogers case and the case here. The fact that the notice of appeal was not served upon the defaulting defendants, Church and wife and Richardson and wife, is wholly immaterial. This is too plain to require argument.
Unless we are ready to overrule our decision in the Rogers case, we must decline to modify the remittitur in the particulars asked. But it does not follow that the appellant has no protection. When it pays this money judgment in full, with costs, it will not do so as a mere volunteer. The obligation to pay it was incurred in a bona fide effort to protect a supposed right. On plainest principles of equity it should, therefore, be subrogated, upon payment of the judgment, to the rights of the respondent in his judgment against Church and wife, and to the specific lien of that judgment upon the mortgaged property, with the right to subject that property to sale for the payment of the judgment to the same extent as the respondent would have had. The respondent is entitled to eight per cent interest against the appellant and its bondsman, as borne by the original judgment entered in the superior court on August 10, 1914. In these particulars, we hereby direct a modification of the remittitur.
The question of costs, suggested by respondent, is not before us. Respondent did not appeal.
Morris, C. J., Mount, Chadwick, and Fullerton, JJ., concur.