(dissenting)—I think the judgment should bé affirmed. Parks did not become entitled to the benefit of Watkins’ successful appeal, because he does not come within the exception to the rule promulgated by ROW 4.88.040. The rule is that a party who does not join in an appeal taken by a codefendant cannot derive any benefit from such appeal. The exception is that such party may derive a benefit from the appeal if the necessity of the case so requires.
We said in Morgan v. Williams, 77 Wash. 343, 137 Pac. 476, that the necessity of the case contemplated by the statute was an absolute necessity, that is, one arising from the inherent nature of the case. This latter thought contemplates a consideration of the nature and character of the judgment and the relationship existing between the defendants.
*142We pointed out in the case of In re LeFevre, 9 Wn. (2d) 145, 113 P. (2d) 1014, that, where the relationship between the defendants was that of principal and surety, on a guardian’s bond, it would be a judicial anomaly to say that there could exist a judgment against the guardian and not against the surety. In such a situation, the guardian from the necessity of the case should benefit by the successful appeal of the surety. In that case, reference was made to the Morgan case, which contains some expressions seemingly inconsistent with the application of the exception to the rule where there- was the relationship of principal and surety.
A fundamental difference between the two cases arises out of the procedure adopted in an effort to gain the benefit of the exception to the rule. In the Morgan case, the non-appealing defendant sought to vacate the judgment after his codefendant had made a successful appeal. The only question before the court was whether the court had the right to vacate the judgment against the nonappealing defendant, and it was decided that such right did not exist. In support of the motion to vacate, the moving party claimed the benefit of the exception to the rule. The court defined the meaning of the words “necessity of the case” and followed this by the use of some language which would have been incorrect had the moving party chosen a proper remedy to relieve himself of the effect of the judgment against him. Perhaps it may be better said that the court reached a correct conclusion but based it upon an untenable ground. In the LeFevre case, the court was able to correct the seeming error because the nonappealing defendant was able to invoke the benefit of the exception to the rule.
However, the two cases, when read and considered together, can be of no aid to Parks because of the difference in relationship between the respective defendants in those cases and between Watkins and Parks. The exception to the rule can apply where the codefendants are principal and surety, but when the relationship between the codefendants is that of co-obligors on a covenent to pay rent, the rule applies and not the exception. No judicial anomaly *143is created by saying that there may exist a judgment against one lessee and not against the other because of a successful appeal by one of them when the original judgment against each of them was not invalid but merely erroneous. If we adopt the view that the exception to the rule applies to Parks, we do away with the rule entirely and make the exception the rule.
Perhaps the situation may be clarified by reference to a commonly used figure of speech. When the surety appealed in the LeFevre case it was “carrying the ball” for the guardian, and naturally the guardian would get the benefit of the appeal by the surety on his bond; however, when Watkins appealed, he was acting solely for his own benefit and was not in any sense “carrying the ball” for Parks. Parks has nothing upon which to base a writ of execution against Mon Wai.
March 9, 1955. Petition for rehearing denied.