(dissenting).— I cannot agree with what is said in the foregoing opinion upon the motions to strike and to dismiss the appeal. I do not think it could have been the intention of the legislature to compel a judge to certify to a statement, if it was not true. I agree with what was said upon that subject in the case of State, ex rel. Hersner, v. Arthur, 7 Wash. 358 (35 Pac. 120), but do not think that what was therein said justifies the conclusion deduced therefrom. It was only decided in that case that neither of the parties could object to a statement unless they did so as provided by statute, and that there was no duty on the part of the judge to enter into an examination thereof to see whether or not it conformed to the facts. And this does not warrant the holding that a judge must certify a statement even although he has personal knowledge that it is untrue.
What is said in reference to the bond on appeal is perhaps justified by the case of McEachern v. Brackett, 8 Wash. 652, cited to sustain it. I did not concur in what was said in that case, and do not in what is said upon the subject in this. •
Upon the merits I fully agree with the result announced, and also with the reasoning, but wish it distinctly understood that so far as I am concerned I desire no inference to be drawn from the decision in this case that the answers would have been held good if they had been attacked in this court upon the ground that it was incompetent to show, by oral testimony, that one who appears upon a note as a joint and several maker was in fact only a surety, for the purpose of relieving him from liability in a suit by the payee upon the note.
I desire further to say that the instruction first set out was, in my opinion, more than misleading. I think it misstated the law of the case.