facts. It is claimed by the appellants that they acted under the law of March 8, 1893 (page 111, Laws 1893). Section 13 of said law provides that a proposed bill of exceptions or statement of facts must be filed and served either before or within 30 days after the time begins to run within which an appeal may be taken from the final judgment in the cause, or, as the case may be, from an order with a view to an appeal from which the bill or statement is proposed, provided that the time herein prescribed may be enlarged either before or after its expiration, once or more, but not for more than 60 days additional in all, by stipulation of the parties, or for good cause shown, etc. On this provision the appellants base their right of appeal in this action. The contention of the respondents is that while, even under the old law, the court would have a right to continue the time for the settlement of a statement, if the application was made within the time prescribed, yet, after the time prescribed by statute had expired, the court had lost jurisdiction, and any order which the court might make in the premises was void, and not binding upon the respondent. This undoubtedly is true, for the statute only gives jurisdiction to the court to grant the appeal or settle the statement of facts, and the terms of the statute must be complied with. The contention of the appellants is that the law of 1893, which was approved March 8, 1893, without any emergency clause, and which, therefore, did not go into effect until June 7, 1893, controls the proceedings in this case, for the reason that section 18 of said act provides that "this act shall govern proceedings had after it shall take effect, in actions then pending as well as those in actions thereafter begun." It is true that the act provides that it shall govern proceedings in actions then pending, but that evidently means the subsequent proceedings in actions then pending, and not prior proceedings, or proceedings prior to the taking effect of the act. If there were any doubt about the meaning of this act, it is all removed by the subsequent portion of said section which provides, in terms, that it shall not affect any right acquired or proceedings had prior to the time when it shall take effect, nor restore any right or enlarge any time then already lost or expired. The right of appeal in this action was acquired previously to the time when the law went into effect. The right to settle the statement had been lost prior to the time this law went into effect, and under the plain provisions of the law such right cannot be restored or enlarged. The language of the section is so plain and unambiguous that it is impossible to construe it. Under the provisions of the law of 1891, then, the time for the settlement of the statement of facts having expired, the court had no jurisdiction to make the order extending the time, and all proceedings taken and had by the court after the expiration of the time for the filing of the statement were void. The motion will therefore be sustained, and the statement stricken. As the appeal is taken from matters exclusively embodied in the statement of facts, the result will be that the judgment will be affirmed. ANDERS, SCOTT, HOYT, and STILES, JJ., concur. (9 Wash. 537) WARBURTON v. RALPH et al. (Supreme Court of Washington. Oct. 10, 1894.) APPEAL STATEMENT OF FACTS VALIDITY AMENDMENT - APPEAL BOND SUFFICIENCYSURETIES ON NOTE-RELEASE BY EXTENSION. 1. Where the trial court, before certifying as true a statement of facts to which the adverse party has proposed no amendments within the statutory time, strikes certain matter therefrom, and exceptions are taken to such action, a motion will not lie in the appellate court to reinsert the matter so stricken out. 2. The 10 days allowed by Laws 1893, pp. 114, 115, § 9, for filing amendments to a proposed statement of facts, cannot be extended by the court. 3. A statement of facts, properly settled and certified, cannot be altered or amended by the trial court. 4. Where the notice of appeal was properly entitled, and served on all the parties appearing in the case, the fact that appellant's brief fails to name as parties certain defendants who defaulted is not ground for dismissing the appeal. 5. The sufficiency of the affidavit of a surety on an appeal bond cannot be questioned for the first time in the appellate court. Hoyt, J., dissenting. 6. A direct allegation of a fact "on information and belief" is sufficient, as such phrase may be regarded as surplusage. 7. The extension of the time of payment as to one only of the joint makers of a note releases the sureties. 8. Where the payee of a note receives it on condition that all the signers shall be liable as makers, the fact that some of them receive none of the proceeds does not render them sureties merely. 9. The mere fact that a note is left with a person for the convenience of all the parties, in signing it, does not make such person the agent of the payee in procuring the signatures, so as to bind the payee by his statements. 10. A request by a surety on a note that the payee "delay pressing the collection" of it does not prevent an extension, as to the maker, of the time of payment, from releasing the surety. Appeal from superior court, Pierce county; W. H. Pritchard, Judge. Action by Stanton Warburton against Jacob Ralph and others. From a judgment for defendants William Zinram, D. B. Hannah, E. G. Bacon, and F. Nachtsheim, plaintiff appeals. Reversed. Baker & Campbell and John M. Boyle, for appellant. Coiner & Davis, for respondents Zinram, Hannah, and Bacon. B. B. Gattel, for respondent F. Nachtsheim. ANDERS, J. This action was brought by the appellant to recover the amount alleged to be due on a promissory note, of which the following is a copy: "$5,100.00. Tacoma, Wash., Aug. 13, 1892. Ninety days (without grace) after date, for value received, I promise to pay to the order of S. Warburton fiftyone hundred dollars, at the Union Savings Bank and Trust Company, Tacoma, Wash., with interest from date hereof at the rate of two per cent. per month until paid. In case suit or action be instituted to collect this note, or any part thereof, I agree to pay, in addition to costs and disbursements provided by statute, five per cent. additional for attorneys' fees in said suit or action. Jacob Ralph, W. B. Kelley, Wm. Zinram, D. B. Hannah, A. U. Mills, E. G. Bacon, F. Nachtsheim." One George W. Boggs, having guarantied the payment of the note, was also made a defendant, but the action was dismissed as to him before trial. Defendants Ralph and Kelley, although duly served with process, did not appear, and default was entered as to them. Mills answered, and the action, as to him, was continued. Each of the other four defendants filed a separate answer, but all of their answers were substantially alike, and the same reply was filed to each of them. The cause was tried by a jury on the issues between the plaintiff and the defendants Zinram, Hannah, Bacon, and Nachtsheim, and the jury returned a verdict for the defendants. A motion for a new trial was made and denied, and thereafter a judgment was entered upon the verdict in favor of these four defendants, and against the plaintiff, from which judgment the plaintiff appealed. On February 17, 1894, notice of the filing of the proposed statement of facts was served by appellant on all of the parties who had appeared in the action, and on the 1st day of March, following, due proof of such service was made before the trial judge, who, upon the application of the appellant, settled and certified said statement. Before certifying the proposed statement, however, the court, on its own motion, struck therefrom the following part thereof: "We also except to the refusal of the court to give his instructions in writing as requested by the plaintiff, as follows: 'Comes now the plaintiff, and requests the court to instruct the jury in writing only in the case.' And we further except to the court's giving oral instructions to the jury," on the alleged ground that no exception of this character was brought to the knowledge of the court; the same having been taken, if at all, by dictating it to the stenographer in attendance, but not in the hearing of the court. To the striking out of the foregoing words the plaintiff objected, which objection was overruled, and an exception allowed. The appellant now moves this court to include in the statement of facts all that portion thereof which was eliminated by the court, and to consider and treat the same, for the purposes of this appeal, as if it had never been stricken out. It is urged in support of the motion that inasmuch as the statute provides that, if no amendments to the proposed statement of facts be served upon the proposing party within ten days after service thereof on the adverse party, the proposed statement shall be deemed agreed to, and shall be certified by the judge, at the instance of either party, at any time, without notice to any other party, on proof being filed of its service, and that no amendments have been proposed (Laws 1893, pp. 114, 115, § 9), it was the unquestionable duty of the court to certify the statement as proposed, without alteration in any particular whatever. That such was the duty of the court, under the provisions of this statute, was, in effect, decided by this court in State v. Arthur, 7 Wash. 358, 35 Pac. 121, but it does not necessarily follow from that fact that appellant's motion should prevail. In our opinion it would not be proper practice to entertain a motion in this court to modify a certified statement of facts, either by inserting new matter therein, or by disregarding or striking out any portion thereof. What the facts are in any particular case, so far as this court is concerned, must be ascertained from the certificate of the trial court. And the truthfulness of a statement properly certified to this court cannot, for obvious reasons, be here questioned on appeal. It is only in cases where the trial court refuses to settle and certify a proper statement of facts that the supreme court is authorized by law to exercise corrective or compulsory power in favor of a party who desires to have his case reviewed, and who, for that purpose, is entitled to have the facts occurring in the trial made a part of the record. And in such cases the party aggrieved by the action of the trial judge should make application to the appellate court for its mandate compelling such judge to settle the statement of facts. But in this instance the appellant was content with merely objecting to the proceeding of the court in striking out the portion of the statement above indicated, and did nothing further until after the statement had been settled, certified, and filed in this court. If the statement is not what it should be, it cannot now be corrected in the manner proposed by the appellant. The motion must therefore be denied. The respondents have filed a motion to strike out the statement of facts herein on the following grounds: (1) That the same was not settled according to law; (2) that the same was settled ex parte, and without notice to the respondents; and (3) that the same does not contain all the material facts, matters, and proceedings, together with all the evidence used at the trial of said action, with all objections and exceptions thereto, heretofore occurring in the cause. The claim that the statement of facts was not legally settled is founded upon the proposition that the court had no right or authority to act upon the application of appellant on March 1, 1894, for the alleged reason that prior to that time, and on February 26, 1894, the court entered an order as therein stated, at the instance of counsel for defendants, extending the time for the settlement of the statement of facts until March 3, 1894. It appears, however, that counsel intended to apply, and supposed he had applied, to the court for an order extending the time in which the defendants might serve and file amendments to the plaintiff's proposed statement of facts, and not for the order which was actually made and entered, as asserted by respondents, through a clerical oversight. Although the order above mentioned was entered prior to March 1st, still the fact remains that on that day no amendments to the statement of facts had been filed or served, and we think the court very properly settled and certified the proposed statement at that time. Indeed, in view of the statute to which we have already alluded, the court could not have done otherwise. The time within which amendments may be filed and served is expressly limited to 10 days after service of a copy of the proposed statement of facts on the adverse party, and the court has no power or authority to extend the statutory period. At any time after the expiration of the 10-days limitation, either party to the action may have the statement certified, without notice to any other party, by applying to the court, and making the requisite proof; and of this right he cannot be deprived, either directly or indirectly, by any order of the court. The objection that the statement of facts was not settled in accordance with law is therefore untenable. Neither do we deem the third ground stated sufficient to authorize the striking out of the statement of facts, even if it be conceded that the statements therein are true. It is not necessary, in every case, that the statement of Yacts shall contain all of the material facts, matters, and proceedings occurring in the trial of the cause, and the judge is not required to so certify unless such is the fact. See Laws 1893, p. 115, § 11. In cases like the present, where no amendments have been proposed within the time specified by the statute, the statement is deemed agreed to, and must be certified accordingly. Id. §§ 9, 11. In this case the trial judge, in his certificate to the statement which was settled on the ist day of March, 1894, after stating all that was uecessary or required under the statute in such cases, further certified "that the foregoing and annexed statement contains all the naterial facts, matters, and proceedings, together with all the evidence used on the trial of said action, with all exceptions and objections thereto heretofore occurring in the cause, not already made a part of the record." On March 2, 1894, the respondents moved the court to set aside the certificate dated March 1, 1894; but the motion was denied, the court Anding that it was regularly made, and that the order of February 26th was irregular and void. On March 3d the respondents (defendants below) proposed nine different amendments to plaintiff's proposed statement of facts, the majority of which consisted of corrections of manifest clerical omissions. One of them, however, purported to be a stipulation between counsel for the respective parties to the effect that the court might charge the jury orally, and that the stenographer might take it down in short hand. This, by the way, is contrary to the record, as originally made and certified, for it therein appears that the court was requested to instruct the jury in writing only in this case. Although the court refused to set aside its certificate to the statement of facts, upon the application of the defendants, or to incorporate therein the proposed amendments, it, nevertheless, on March 27, 1894, amended its original certificate by certifying that the statement in said certificate above quoted is not true, and will not be true until said statement of facts shall contain the amendments proposed by the defendants, together with rule 12 of the rules of the superior courts of the state of Washington, and the rules of the superior court of Pierce county. This rule of court provides that, where a request for a charge in writing is made, notice of the intention so to request shall be given to the judge at or before the commencement of the trial. The statute, however (Code Proc. § 354), provides that such a request may be made when the evidence is concluded, and where the law and a mere rule of court conflict with each other the former must, of course, prevail. If, therefore, the request to charge in writing was made after the evidence was closed, instead of at the commencement of the trial, it would seem that it could not be disregarded on that account. But, however this may be, the record, as certified by the court, contains no exception to the failure of the court to charge the jury in writing, and consequently that question is not now a material one in this case. It was entirely proper for the learned trial judge to amend his certificate so as to make it conform to the facts, but we see nothing in the statute authorizing the court to alter or amend a statement of facts which has been properly settled and certified, and then amend the certificate so as to make it conform to the statement as thus amended. As was said by this court in State v. Arthur, supra, this would be virtually a new settlement of the statement of facts, which would destroy the force of the law prescribing time; and the questions which ought to have been settled within 10 days after the filing of the statement would remain unsettled up to the time of the hearing of the appeal, and no intelligent preparation for the hearing of a case in this court could be made. As the court, in effect, certified, in accordance with the provisions of the statute, that the proposed statement had been agreed to between the parties, its certificate was sufficient without that portion which is referred to in the supplementary or amended certificate, dated March 27, 1894. The statement, as settled and certified on March 1st, must, therefore, for the purposes of this appeal, be deemed to correctly set! forth the facts, matters, and proceedings occurring in the trial, and not otherwise appearing of record. The respondents also move to dismiss this appeal for the alleged reasons that the appellant has not appealed to this court, or filed a brief in the case tried in the court below; that he has failed to join in this alleged appeal certain necessary parties; that there has not been settled, served, or filed in this cause any bill of exceptions or statement of facts as required by law; and that the appellant has not filed an appeal bond in form or substance as required by law, or such a bond as renders his appeal effectual. What we have already said disposes of the objection to the statement of facts. The objection that the appellant has not appealed the cause tried in the court below seems to be based on the fact that in his brief he has omitted the names of Ralph, Kelley, and Mills, who were defendants, and designated only Zinram, Bacon, Hannah, and Nachtsheim in whose favor the judgment appealed from was rendered, as respondents. The notice of appeal seems to be properly entitled, and was served, as required by law, upon all parties who appeared in the action. The appeal was therefore properly taken, and if the brief of the appellant is defective in not designating all of the defendants below as respondents here, it is not such a defect as would warrant a dismissal of the appeal on the application of those who are properly before this court, and are really the only parties respondent in the case. We find no difficulty in determining what cause was appealed to this court, and we apprehend that the respondents have found none. Moreover, the record shows that the respondents, impliedly at least, heretofore recognized the sufficiency of the brief they now criticise, for after it was filed they applied for more time in which to file their answering brief, and stipulated to file it on or before April 15, 1894. Even if that was not a direct waiver of the objection here made, they certainly ought not to urge it here and now for the first time. The objection to the appeal bond is indefinite, in that it does not point out wherein it is defective or insufficient. The only defect we perceive in the bond, that can be said to be at all material, is the failure of the surety therein to state in his affidavit that he was worth the amount specified in the bond, in property within this state, though he did state that he was a freeholder of the state. A complete answer to this objection to the affidavit is found in the opinion of this court in McEachern v. Brackett, 8 Wash. 652, 36 Pac. 690. It was there held that, when no exception is taken in the trial court to the affidavit of sureties upon an appeal bond, the defect is waived, and cannot be urged in the supreme court. The motion to dismiss is denied. The respondents, in their answers, admitted the making and delivery of the note set forth in the complaint, but alleged that the entire consideration for the same was received by the defendant Ralph, and that they ex ecuted the note solely for the accommodation of defendants Ralph and Kelley, and at their instance and request, and as sureties only, which fact was well known to the plaintiff. And, as affirmative defenses, they set up the facts (1) that on January 11, 1893, the plaintiff, for a valuable consideration, and without their knowledge or consent, entered into an agreement with Ralph, the principal maker of the note, to extend the time of payment for the period of 90 days from and after said date; and (2) that the plaintiff received from the defendant W. B. Kelley a good and sufficient deed of conveyance of and to certain described real estate in the city of Tacoma, and that said conveyance was made and received upon and under a verbal agreement between said Kelley and the plaintiff that the same should be held by the plaintiff as security for the payment of said note, and one other certain note for $1,900; that said real estate was at the time of the making and delivery of said deed, and ever since said time has been, of the actual value of at least $8,000; and that the plaintiff, after the making and delivery of said note and of said deed, without the knowledge or consent of the defendants, conveyed said real estate to a certain banking corporation doing business at Tacoma, and thereby voluntarily relinquished and gave up all of said security. The plaintiff, in his reply, admitted that all of the said $5,100 was paid to defendant Ralph, but alleged that it was so paid for the use and benefit of all of the defendants, except Boggs, and that all of the defendants, save Boggs, signed the note as principal makers thereof. As to the second defense the plaintiff alleged, in substance, that prior to the 12th day of August, 1892, the answering defendants, together with other defendants, had made and executed a note for $7,000, with interest at 2 per cent. per month, for the purpose of having the same discounted, and the proceeds used in buying apparatus and materials for, and to pay the running expenses of, a corporation or firm engaged in, or about to engage in, the business of raising sunken vessels, and that on said 12th day of August, 1892, said defendants, through their agents, solicited plaintiff to discount said note; that plaintiff agreed to discount said note on the express condition that said note would be divided into two notes (one in the sum of $5,100, the other in the sum of $1,900), and all of said defendants sign said notes, on the face thereof, as principal makers, and further provided defendants would give plaintiff real estate to secure said notes; that on August 13, 1892, the defendant W. B. Kelley agreed to make and execute a deed of the lots described in defendants' answer, on the express condition that the same should be held by plaintiff or his assigns as additional security for said notes, and that in case default should be made in payment of the notes the property of the signers of said notes should be first exhausted in payment thereof, or execution issued against them; that plaintiff, at said time and place, agreed with defendant Kelley to accept said proposition, and accepted said real estate as security to said notes upon the further condition that plaintiff might convey said property to the Union Trust & Savings Bank of Tacoma to secure the sum of $4,500, which sum plaintiff was about to borrow from said bank, and which sum was a part of the $7,000 that plaintiff loaned the defendants; that thereafter, on said August 13, 1892, and prior to the signing of said note by any of the defendants, the plaintiff, W. B. Kelley, and said bank and trust company made and entered into an agreement in writing, containing all the conditions upon which said deed was given, taken, and held, which writing was as follows: "Tacoma, Wash., Aug. 13th, 1892. Received from Stanton Warburton warranty deed of William B. Kelley to said Stanton Warburton, conveying lots 10, 11, 12, & 13 in block 708, city of Tacoma with distinct understanding that said deed may be recorded at any time this bank may consider it necessary, to further secure the payment of a certain note for $4,500, dated to-day, and payable in 90 days, & made by Stanton Warburton aforesaid & wife to this bank, or any renewals thereof, and also a deed for same property from said Stanton Warburton and wife to this bank, which is subject to aforesaid conditions. And it is distinctly understood that the property conveyed becomes the absolute property of this bank in case default be made in payment of above-recited note, or any renewals thereof, on 30 days' notice by this bank. A. R. Nicol, Cashier. I hereby consent to above. S. Warburton. I consent to above, said bank agreeing to first give me 30 days' notice before recording my deed. W. B. Kelley." At the trial upon the issues thus raised by the pleadings, the plaintiff objected to the introduction of any evidence on behalf of the defendants on the ground that neither of the alleged affirmative defenses stated facts sufficient to constitute a defense, which objection was overruled by the court. When the defend. ants rested, the plaintiffs moved the court to strike out all the evidence submitted by defendants, on the ground above stated, and to direct the jury to return a verdict for the plaintiff. The above motions were denied, and thereafter the plaintiff further moved the court to instruct the jury to return a verdict for the plaintiff, on the ground that it did not appear from the evidence that there was any agreement between plaintiff and either or any of the defendants to extend the time of the payment of the note. This mo tion was also denied. The appellant insists that these rulings of the court were erroneous, and prejudicial to him. As it has already been shown, the objection to the introduction of evidence as to the two affirmative defenses, the motion to strike out the testimony, and the request to direct a verdict for the plaintiff, were made on the ground that the facts stated were not sufficient to constitute a defense. The only reason assigned by the learned counsel for the appellant for their contention is that the facts as to extension of time of payment and the release of security are not positively stated. The allegation is that the defendant, "on information and belief, alleges," etc.; and it is insisted that such an allegation is unwarranted, either by the Code, or by any rule of common-law pleading, and in fact amounts to no allegation at all. Our Code provides (Code Proc. § 188) that the complaint, among other things, shall contain "a plain and concise statement of facts constituting the cause of action, without unnecessary repetition." And it is undoubtedly true that the facts should be stated positively, and in a traversable form; but this does not necessarily prohibit the statement of a fact on information and belief, for such an averment may, nevertheless, be direct and positive. To state that the plaintiff is informed or believes that a particular fact exists would be bad pleading, because it would simply be an allegation of information or belief as to the fact, and not an averment of the existence of the fact itself. Here the facts are stated, and the words "on information and belief” may be regarded as surplusage. The rule, as deduced from the authorities, is laid down by Abbott, in his Trial Brief on Pleadings (section 58), as follows: "A direct allegation of a fact may be expressed to be made 'upon information and belief,' and is not on that account bad on demurrer, even when the fact so stated may be presumed to be within the personal knowledge of the party pleading." See, also, Wells v. Hydraulic Co., 30 Conn. 316; McKinney v. Roberts, 68 Cal. 192, 8 Pac. 857; Ward v. Clay, 82 Cal. 502, 23 Pac. 50, 227. From the foregoing, it follows that the objections under consideration are not well founded. It is asserted by the appellant that it is admitted by the pleadings that both Ralph and Kelley were principal makers of the note. And from that proposition, as a premise, he draws the conclusion that the facts stated in the first affirmative defense are insufficient, for the reason that it is therein alleged that the contract for extension of the time of payment of the note was entered into between the appellant and Ralph alone, and was consequently invalid and inoperative. That the pleadings admit that Kelley was a joint principal with Ralph is denied by the respondents, and they strenuously insist that, even if he was a joint maker, the con |