ON PETITION POR REHEARING.
SULLIVAN, C. J.— This is- an application for a rehearing based on a printed petition containing one hundred and three pages. In the opinion, the main points involved in this controversy are stated, and it is not necessary to repeat them here, In the -petition for a rehearing counsel first discuss writs of. error at common law, appeals in suits of equity, and the nature of this appeal, and contend that this is an action at law, and presented on a bill of exceptions, and for that reason only errors of law can be considered on this appeal; that the only question presented for determination is, “Has any prejudicial error been committed, which was excepted to, and preserved by the record ?” that this is not an appeal from an order refusing a new trial, and based upon a statement of the case, but is in the nature of a hearing on writ of error to the district court. The petition contains a very learned discussion of the questions above *781indicated, and we fully agree with much of the argument and many of the points suggested. We admit that, if the record contains proper specifications of error, and the record shows that prejudicial error, based on such specifications, has been committed, the judgment must be reversed. It is conceded that this court decided three of the errors specified, and it is contended that, as there were fifty errors specified, there remain forty-seven not decided, and that it is absolutely necessary foi the court to pass upon, in the written opinion; each of the errors specified. This contention is based upon the distinction drawn by counsel between appeals based on a bill of exceptions and those based on a statement of the case in an action at law. We cannot agree with counsel in his conclusion on that point. Section 3818 of the Revised Statutes provides, inter alia, as follows: “The decision of the court shall be given in writing; and in giving a decision, if a new trial is granted, the court shall pass upon and determine all of the questions of law involved in the ease presented upon such appeal, and necessary to a final determination of the case.” Those provisions apply to all appeals, whether based on bill of exceptions or statement of the case, both in actions at law and suits in equity. The distinction suggested by counsel between such appeals is not recognized by the provisions of said section, at least so far as to require a different decision in the one case than in the other. Neither on an appeal based on a bill of exceptions nor on a statement of the case do the provisions of said section of the statute require the court, in its decisions, to pass upon and determine all of the questions of law involved in the case, unless a new trial is granted. So, in this case, as a new trial was not granted, it was not necessary for the court to pass upon, in the written decision, each of the errors specified seriatim. The principal specification of error was that the verdict of the jury was not supported by the evidence. While it is true an exception to the verdict is saved by the statute, if the appellants, however, did not care to take advantage of that exception, they need not have done so. But they did, and argued it at considerable length, both in brief and oral argument, and the court decided it. In the decision of the ease the court first considered the exceptions *782to the introduction and rejection of testimony admitted, offered and rejected, as well as those taken to the modification, giving, and refusing to give certain instructions; and, after passing thereon, concluded that upon the pleadings and evidence the1 verdict must be sustained. That disposed of many of the errors specified; the main issue in the case being whether the money sued for in this action was in the hands of the sheriff at the time his second bond — the one sued on herein — was given; or, stated in another form, whether the misfeasance in office dereliction of duty, or conversion of the goods and proceeds occurred during his first term of office or during his second term. We have, no doubt, from the record before us, that it occurred during his first term, and that the evidence supports the verdict of the jury.
There was error in the admission of some testimony, and some in the rejection of testimony, but we do not think it was such error as to prejudice the substantial rights of the parties. That being true, under the provisions of section 4231 of the Revised Statutes, courts' are admonished to disregard any error or defect in the proceedings which does not affect the substantial rights of the parties, and not to reverse any judgment because of such error or defect. The fifty errors specified may be classified as follows: One, that the court erred in permitting Mr. Price to act as attorney for the respondents; twenty-nine in regard to the admission and rejection of testimony; nineteen in regard to the modification, giving, and refusing to give certain instructions; and one as to the verdict not being supported by the evidence. The court examined each of said specifications, and while in several of them, we found error, we did not consider the errors sufficient to warrant a reversal of the judgment.. The court concluded that the substantial rights of appellants had not been prejudiced by the errors committed. The court concluded that the verdict of the jury, had it been for the appellants, would not have been supported by the evidence if all of the evidence offered by them or in their behalf had been admitted, and that a verdict in favor of appellants should have been set aside, upon proper application. In that case it was not necessary to pass upon each and every of the specifications of *783error in the written decision. That being the conclusion reached by the court, it did not matter whether errors had been made in the admission or rejection of testimony or in the modification, giving, or refusing to give certain instructions. For if, under the pleadings and proofs, taking into consideration all of the testimony offered by the appellants, that admitted as well as that rejected, the court had concluded that under the law and evidence the appellants were not entitled to a judgment, the judgment would not be reversed, even though the court had erred in many matters in the trial of said case.
After a most careful examination of the entire record before us, we are fully convinced that the dereliction of duty or misfeasance in office — the conversion of the goods or their proceeds —occurred prior to the time that these surety defendants and respondents became liable on the undertaking sued on, and that upon all of the testimony, both received and offered and rejected, and the law applicable to it and to the issues made by the pleadings, a judgment in favor of appellants should, on proper application, have been set aside, and not permitted to stand. Counsel for petitioners (appellants) admit that it is immaterial in this action how the sheriff got' the money out of or for the Callaghan goods, or a part of them, but that, if he had it in his hands after these respondents became sureties for his official 'actions, they were liable. We concede that the main issue in this action is as to whether the sheriff had the money in his hands after these respondents became his sureties, and, as we conclude from the whole record that the verdict of the jury is supported by all of the evidence offered and received, including that offered by appellants and rejected by the court, and that a verdict in favor of appellants, based thereon, would not have been supported by such evidence, therefore no prejudicial error was committed; for, if the appellants would not have been entitled to a judgment upon any theory of the case, as presented by the record, they are not entitled to a reversal of the judgment.
Considerable criticism is made by learned counsel because of the use of the word “estoppel” in the original opinion; and we may concede that it might have been more correct to have used *784the term "defense" or "plea in bar" to the cause of action set up in the complaint, than an estoppel in its technical meaning or sense. But that does not alter the merits of the case. The complaint alleged, in substance, the conversion of money, the proceeds of certain goods theretofore attached by the sheriff, which proceeds were alleged to have been in the hands of the sheriff at the time the respondents executed the bond sued on herein. The answer put that allegation in issue, and also set up the further defense that the plaintiffs had recovered a judgment for the same cause of action as alleged in the complaint in this action against the official sureties of said sheriff during his first term of office. The latter defense, if established, would be a complete defense to this cause of action: for, if the dereliction or misconduct of the sheriff occurred during his first term, his bondsmen for the second term would not be liable, unless they were his sureties on his first bond, which they were not. Section 4187 of the Revised Statutes provides that a defendant may set forth in his answer as many defenses as he may have.
The petition for a rehearing is denied.