*701Former opinion adhered to April 10, 1917.
On Rehearing.
(161 Pac. 370.)
On petition for rehearing, former opinion adhered to.
Mr. Dan E. Powers and Mr. W. S. Eufford, for the petition.
Mr. W. B. Shively, contra.
Department 2.
Mr. Justice Mooredelivered the opinion of the court.
7. In a petition for a rehearing it is maintained that an error was committed in disturbing the findings of fact made by the trial court. The transcript does not contain a copy of such findings if any were made. This is a suit in equity which is tried anew in this court, and in such cases findings made by the lower courts are only persuasive. Attention is called to the rule prevailing in the trial of actions at law on appeal from a judgment given upon findings of fact made by the lower court in a cause tried without the intervention of a jury. In such cases the findings of fact when supported by any evidence are conclusive. That legal principle, however, has no application to the trial of an appeal from a decree in a suit in equity.
8. The pleadings in this suit nowhere allege that a summons was ever issued in the action in which the attachment was sued out. No writ of that kind could legally have been secured until the summons had been issued: Section 295, L. O. L. It was incumbent upon the defendants, in order to substantiate their superior *702right to the real property attached, to allege and prove every step leading np to the filing of the certificate of attachment; bnt they having failed in the particular mentioned, we adhere to our former opinion.
Reversed. Opinion Adhered to.
Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McCamant concur.