
    [No. 19824.
    Department Two.
    August 20, 1926.]
    William A. Greene, as Trustee in Bankruptcy for Joseph Levinson, Respondent, v. National Surety Company, Appellant.
      
    
    
       Appeal (503) — Liability- on Bonds — Supersedeas Bond — Extent of Liability — Judgment. Where a judgment for defendant, not withstanding a verdict for plaintiff, in a greater sum than the penalty in the supersedeas bond is reversed, with directions to enter judgment “carrying into effect the views herein expressed” judgment is properly entered below to the same effect that the supreme court could have entered; and the sureties in the supersedeas bond are liable in an action thereon in the full penalty of the bond, where the bond was conditioned as required by Rem. Comp. Stat., § 1737, that they will satisfy and perform any judgment the supreme court may make or order to be made by the superior court.
    
       Same (394) — Review—Presumptions—As to Pleadings. In the absence of a statement of facts, it will be presumed that the complaint, if defective, was amended at the trial.
    
      Appeal from a judgment of the superior court for King county, Mills, J., entered April 13, 1925, upon findings in favor of the defendant, in an action upon a supersedeas bond, tried to the court.
    Affirmed.
    
      Frank 8. Griffith, for appellant.
    
      C. L. Henry, for respondent.
    
      
      Reported in 248 Pac. 803.
    
   Main, J.

— This action is based upon a supersedeas bond. The trial resulted in findings of fact, conclusions of law and a judgment sustaining plaintiff’s right to recover in the sum of five thousand dollars, this being the penal sum mentioned in the bond. From this judgment, the defendant appeals.

No statement of facts or bill of exceptions has been brought to this court, and therefore the only question in the case is whether the findings support the judgment.

In Greene v. Levmson, 123 Wash. 370, 212 Pac. 659, a judgment was entered against the Manhattan Investment Company and another defendant, from which both appealed. The Manhattan Investment Company gave a supersedeas bond upon which the defendant in the present case was surety. The judgment in that case was reversed and the cause remanded with direction to the superior court to ‘ ‘ enter judgments carrying into effect'the views herein expressed.” In accordance with this direction, a judgment was entered against each of the defendants, and that.against the Manhattan Investment Company was for a greater sum than the penalty mentioned in the supersedeas bond. The respondent in this action thereafter called upon the appellant to pay its bond, and was met with a refusal. The present action was the result.

The appellant concedes that, if this court had entered the judgment upon the record in the case of Greene v. Levinson, supra, it would have been liable; but it contends tbat, wben tbe cause was remanded to. the superior court, tbat court had no right to enter a judgment upon tbe record previously made, but was required to frame an issue and take additional testimony. Tbe bond in question, among other things, contains tbe provision tbat the surety company, tbe appellant, will satisfy and perform “any judgment or order which tbe supreme court may render or make or order to be rendered or made by tbe superior court.” Rem. Comp. St at., §1737 [P. C. §7322], among other things, provides tbat, where a judgment of tbe superior court is reversed, this court “may direct tbe proper judgment or order to be entered.” In tbe Levinson case, as pointed out, this court did not enter tbe judgment itself, but directed the superior court to enter tbe judgment, and tbat court was acting within its power and within tbe direction given by this court wben it entered the judgment upon tbe record made upon tbe first trial. Tbe judgment entered was in direct accord with the provision in tbe bond and tbe direction given by this court.

There is some suggestion in tbe appellant’s brief tbat tbe amended complaint upon which this action was tried did not state a cause of action. There being no bill of exceptions or statement of facts here, so far as we know tbe complaint may have been amended on tbe trial, if it be assumed tbat -it was defective. There is a presumption in favor of tbe correctness of tbe judgment entered and, in tbe absence of an affirmative showing of error, it will be sustained.

There was no error in tbe judgment entered by tbe superior court, and it will be affirmed.

Tolman, O. J., Mackintosh, Mitchell, and Parker, JJ., concur.  