This case is an aftermath of Mon Wai v. Parks, 43 Wn. (2d) 562, 262 P. (2d) 196. That opinion is included by reference herein. The instant action is an ap*139peal by George F. Parks from a denial of his motion, in the court below, for a writ of execution against N. Mon Wai.
It appears from the former action that Parks and Watkins had been the lessees of certain real estate owned by Mon Wai. Parks sold his interest to Watkins, whose subsequent failure to pay the rental for three months resulted in Mon Wai securing a judgment for it. The judgment was joint and several against Parks and Watkins, because they both had signed the lease previous to Parks’ sale of the business to Watkins. The judgment provided, however, that, if Parks had to satisfy it, he could have a judgment over against Watkins.
Watkins alone appealed from the judgment. Mon Wai waited until the time for an appeal by Parks had elapsed, and then, during the pendency of Watkins’ appeal, collected his judgment from Parks. He thereupon satisfied the judgment of record, and moved to dismiss Watkins’ appeal as being moot. We denied the motion to dismiss, and later reversed the judgment as to Mon Wai because of a liquidated damages provision in the lease.
Parks had, in the meantime, recovered from Watkins according to the tenor of his judgment over. After the reversal of the Mon Wai judgment, Watkins moved for and secured from the trial court a writ of execution against Parks and Mon Wai for recovery of the money which he had paid Parks on his judgment over. Upon Watkins’ recovery from Parks, the latter was again out the money with which he had satisfied Mon Wai’s judgment. He thereupon moved the trial court for a writ of execution against Mon Wai to recover it. The trial court denied the motion for such a writ of execution, and this appeal followed.
Mon Wai concedes that he still has the money he received before his judgment was reversed. It is his position, however, that Parks cannot recover it, because he was not a party to the appeal which reversed it. He relies upon RCW 4.88.040 [cf. Rem. Rev. Stat., § 1720] which reads in part as follows:
“All parties whose interests are similarly affected by any judgment or order appealed from may join in the *140notice of appeal whether it is given at the time when the judgment or order is rendered or made, or subsequently; and any such party who has not joined in the notice may at any time within ten days after the notice is given or served, serve an independent notice of like appeal, or join in the appeal already taken by filing with the clerk of the superior court a statement that he joins therein or in some part thereof, specifying in what part. Any such party who does not so join shall not derive any benefit from the appeal unless from the necessity of the case; nor can he independently appeal from any judgment or order already appealed from, more than ten days after service upon him of written notice of the former appeal, unless such former appeal is afterward dismissed. ...” (Italics ours.)
The subject matter of the above-quoted portion of RCW 4.88.040, in so far as it relates to the right of parties to join in an appeal and the manner of doing so, is now covered by Rule on Appeal 33, 34A Wn. (2d) 33, as amended, effective January 2, 1951. In this respect, as well as in respect to the service and filing of notices of appeal and proof of service thereof, Rule 33 is intended to be self-sufficient, and the statute has, in effect, been abrogated. See Mulka v. Keyes, 40 Wn. (2d) 919, 923, 246 P. (2d) 834.
However, the subject matter of the italicized words in the above-quoted portion of RCW 4.88.040 is not covered by Rule 33. Whether this omission is due to an oversight or because the italicized words were thought to deal with substantive rather than procedural law, is not known. There is nothing to indicate an intention to abrogate this particular portion of the statute. We accordingly regard the italicized portion of this statute as still in effect.
In Morgan v. Williams, 77 Wash. 343, 137 Pac. 476, we said:
“The necessity of the case contemplated by that statute is an absolute necessity; that is to say, one arising from the inherent nature of the case in that no judgment rendered could, under any circumstances, be valid as to one of the parties and not as to the others(p. 347) (Italics ours.)
The italicized words state the test to be applied. See, also, In re LeFevre, 9 Wn. (2d) 145, 113 P. (2d) 1014, which indicates that a nonappealing party may benefit from *141the “necessity of the case” provision although the judgment against him is not void but only erroneous. It was there held that a guardian who had failed to appeal from a judgment against her could benefit from an appeal taken by the bonding company.
Mon Wai, as lessor, sued Parks and Watkins, as lessees, whose names were both affixed to the lease. Parks and Watkins answered separately. Mon Wai asserted no greater or additional right to recover against either of the defendants than he did against the other. Neither defendant asserted any defense which, if upheld, would not have been a defense as to both defendants. In view of these facts, no judgment could, under any circumstances, have been valid as to one of the defendants and not as to the other. Accordingly, the trial court, having found that Mon Wai was entitled to recover, entered judgment against both defendants.
It is therefore seen that the judgment entered meets the test suggested in Morgan v. Williams, supra, and that Parks is entitled to the benefit of Watkins’ appeal by reason of the necessity of the case.
The order appealed from is reversed.
Mallery, Weaver, and Olson, JJ., concur.