On Petition bob Rehearing.
[Decided May 1, 1916.]
Per Curiam.Respondents Chesterley have filed a petition for rehearing in which they complain that the court has not passed upon a motion to dismiss the appeal, and that we have reached a wrong conclusion upon the facts.
The first ground of the motion to dismiss is that appellant, having given a notice of appeal and bond, this court was vested with jurisdiction, and that such notice and bond could not, thereafter, be withdrawn upon the ex parte motion of the appellant ; that the notice and bond having been actually withdrawn, there is no valid bond upon which respondents might *137depend if successful in this court. We did not notice this ground of motion for two reasons; the respondents did not prevail upon the appeal, and appellant thereafter gave notice that he had abandoned his attempted appeal and had filed another notice and appeal bond within the time allowed for appeal. This, appellant had a right to do under the statute, and it is a matter of no materiality whether the original notice and bond were withdrawn or allowed to remain as a part of the files of the court. Rem. & Bal. Code, § 1735 (P. C. 81 § 1223) ; Carstens & Earles v. Seattle, 84 Wash. 88, 146 Pac. 381; State v. Miller, 80 Wash. 487, 141 Pac. 1139.
We did not notice the second ground for dismissal of the appeal, because the contention of- the parties rests upon a difference as to when the judgment was rendered, and when a motion for a new trial was overruled. Inasmuch as there is a formal order of the court reciting that the motion for new trial was argued and overruled on the 26th day of January, 1915, we did not feel at liberty to question it upon respondent’s assertion that they did not know of its existence until in the preparation of their defense on this appeal. The place to correct such errors is in the court below.
Another and sufficient reason for passing the second ground of the motion to dismiss is that we have heretofore held that the announcement of the court’s intention, either orally or by way of memorandum opinion, is not the entry of a judgment; that the appealable order is the final and formal judgment of the court. In re Christensen’s Estate, 77 Wash. 629, 138 Pac. 1. Wooddy v. Seattle Elec. Co., 65 Wash. 539, 118 Pac. 633, is not in point. That case was an action at law. There had been a final and formal judgment of nonsuit, and a dismissal entered prior to the time of filing the motion for a new trial. Nine months later, counsel had the court sign a judgment. It was properly held that the time for appeal could not be enlarged in that way. There the motion for a new trial was timely made. Here it was prematurely made.
*138The fact that a motion for a new trial was made prematurely would not change the rule or make a judgment out of the court’s memorandum. The formal judgment was entered on the 15th day of February, 1915, and an appeal was taken within the statutory time.
Counsel strenuously insist that we should have followed the trial judge in his findings of fact; that, by our ruling, we have denied to the trial judge, who is admittedly trained as an expert in weighing and sifting facts, the same consideration we would give to the verdict of a jury if it had found in the same way. In jury cases, courts will not assume to pass upon the weight of the testimony if there be fact, or inference from the facts, which would sustain the verdict; and we repeatedly affirm verdicts where we might have held to the contrary if we were free to do so. In cases tried by the court and in all suits in equity, the statute puts upon us the duty of trying the case de novo. If, upon a review of the evidence, it seems to preponderate in favor of the judgment, or we cannot say that it does not, we affirm the judgment or decree. But it seems to us that there is more than a question of preponderance here. We may grant that there is a bare preponderance, but the law demands more. To overcome a formal instrument and certificate of acknowledgment, the proof must be clear, cogent, and convincing. This is obviously a requirement of more than a bare, or even a measurable, preponderance of the spoken testimony. It means that the testimony of witnesses shall not be weighed, the one against the other only, but that the testimony of the one shall be measured against the other, supported as it is by one of the strongest presumptions of fact known to the law; that is, that an acknowledgment to a deed formally certified imports verity.
As clear a statement of the law as will be found is in Lickmon v. Harding, 65 Ill. 505.
“Public policy requires such an act should prevail over the unsupported testimony of an interested party, otherwise, there would be but slight security in titles to land.”
*139Mr. Devlin, citing many authorities, deduces the following formula:
“The evidence to impeach a certificate must be cleár and convincing and must establish the fact beyond a reasonable doubt.” 1 Devlin, Real Estate (3d ed.), § 529.
This is but a corollary of the statement that the certificate-imports verity, and the rule that the certificate of a notary will not be overcome, even as between the parties, unless fraud and collusion be clearly established. We find nothing upon which to base a finding of fraud. The notary is not impeached in his personal character. The testimony of the Hawkins that they did not sign, or intend to sign, a mortgage is not enough (1 Devlin, Real Estate, § 529) ; or the fact that they were ignorant and subject to imposition, although a circumstance, is not enough (Hersner v. Martin, 8 Wash. 698, 36 Pac. 1096) ; or that it would have been more to the business interests of the Hawkins to refuse to sign the mortgage.
Neither is the fact that there was some confusion between the appellant mortgagee and the notary as to the place where the mortgage was acknowledged enough to destroy the legal effect of the certificate. The question of the place was collateral, going only to the credibility of the witnesses. It was, in a sense, immaterial to the real issue, the defense being that the mortgage was not signed or acknowledged at all.
Counsel still insist, as we understand, that we have put an unwarranted burden upon the Hawkins when we hold them to some proofs of statement or circumstance which may be fairly said to be independent; that there were only four witnesses, two against two; that this holding compels the Haw■kins to prove a negative, which-is humanly impossible; that, where it is impossible to call other witnesses, the court must follow those who “tell a straightforward story,” and reject the others who are charged with shifting and changing. Granting, for the sake of argument, only, that the record *140bears out counsel’s assumptions, we still have the formally acknowledged mortgage, which must be given its proper weight. The sum of counsel’s contention is that the instrument should be rejected because appellant and the notary are uncertain as to the place of acknowledgment. Our holding is that this is not a circumstance of sufficient importance upon which to predicate a finding of fraud. The law was settled in the Waisman case. It will bear further quotation:
“Public morals and public security are best served by the requirement of that degree of proof which is disinterested and unaffected by any private advantage sought, before a certificate of acknowledgment shall be held to be impeached.” Western Loan & Sav. Co. v. Waisman, 32 Wash. 644, 73 Pac. 703.
See, also, Thompson v. Schoner, 58 Wash. 642, 109 Pac. 116.
Nor does it follow that, because Mrs. Hawkins was not a party to the original debts, she is a corroborating witness. She signed the notes which the mortgage was given to secure and, under authorities so numerous that to assemble them would be an idle waste of time, became a party to the transaction now sought to be overturned and is bound in any event, and by the rules of evidence affecting parties to a questioned transaction.
Because of the insistence of counsel, we have reexamined the record and find nothing that would warrant a reversal of our first holding. Complaint is made that a judgment was taken against the Hawkins, and that they are liable for any deficiency which may remain after the property has been applied to the satisfaction of the debt. It is true, as asserted, that appellant, who appeared for himself at the trial, said that he was asking no more than a foreclosure of his mortgage, and was not seeking a deficiency judgment; but the court did find the full amount demanded to be due, and did render a judgment for that sum. No appeal was taken by the Hawkins, and it follows that, so far as respondents are *141concerned, their defense cannot be carried beyond a denial of the legal existence of the mortgage. Upon this issue, they have been heard fully.
We adhere to our opinion that the mortgage is a valid incumbrance, and a present lien upon the property.