
    (No. 5213.
    Decided July 14, 1905.)
    E. H. Ahrens et al., Appellants, v. The City of Seattle, Respondent.
      
    
    Appeal—Bond—Conditions. A bond on appeal conditioned -for tbe payment of all costs and damages adjudged on tbe appeal and for tbe performance of any judgment, covers costs on tbe dismissal of tbe appeal, and is sufficient altbougb not in tbe exact language of the statute.
    Same — Bond as Supebsedeas — Amount-—-Appeal Fbom Assessment. Upon an appeal from a judgment confirming a municipal assessment and for $18.90 costs, in which tbe court fixed no amount for a supersedeas bond, a bond on appeal in tbe sum of $300, sufficient in form as an appeal bond, will give tbe supreme court jurisdiction of tbe appeal, where it is not conditioned to effect a stay, altbougb it contains some of tbe recitals of an ordinary supersedeas bond, since it is a mere nullity in respect to tbe stay.
    
      Municipal Corporations—Assessments—Appeal From Confirmation—Trial in Superior Court—New Evidenge. Upon appeal from a municipal assessment tbe appellant is entitled to a trial on new evidence submitted by bim, and is not confined to tbe record certified from tbe city council.
    Appeal — Decision-—-Review oe Special Assessment — Remand. Upon reversing an order of tbe superior court, confirming a municipal assessment, for error in excluding all evidence offered, tbe supreme court is not confined to a correction of the assessment roll, but will remand tbe case to tbe superior court for a full trial on tbe evidence.
    Appeal from the judgment of the superior court for King county, Bell, J., entered March 3, 1904, in favor of the city, upon excluding all evidence offered, dismissing an appeal from a municipal assessment.
    Reversed.
    
      Shepard & Lyter, for appellants.
    
      Mitchell Gilliam, Hugh A. Tait, and Wm. Parmerlee (James B. Howe, of counsel), for respondent.
    
      
      Reported in 81 Pac. 558.
    
   Hadley, J.

At the time of the first oral argument on this appeal, respondent suggested that the appeal bond is defective, and orally moved to dismiss the appeal. Argument was heard upon the subject, and the matter was taken under advisement. At the recent term of this court, another oral argument was heard, and the cause was submitted to the entire court as now constituted. The alleged defect in the appeal bond was not discussed at the time of the last oral argument. We do not understand, however, that respondent has abandoned its position in that matter, but rather that further discussion o-f it was omitted for the reason that the court may have indicated that it did not care to hear further argument on that subject. The defects suggested are, (1) that the bond does not contain the words “or on the dismissal thereof;” (2) that it is insufficient in amount to operate both as a supersedeas and a cost bond.

With regard to the first point suggested, it does appear that the words above quoted from the statute are not in-eluded in the bond. It is, however, conditioned that appellants will not only pay all costs and damages adjudged against them on the appeal, but that they will also perform any judgment or order that may be rendered against them by this court. A judgment for costs on the dismissal of the appeal would therefore be covered by the terms of the bond. It is sufficient to protect every right of respondent, and in such case the bond should not be held to be jurisdictionally defective for mere failure to use the exact words of the statute. Anderson v. Bigelow, 16 Wash. 198, 47 Pac. 426.

Kef erring now to the second point urged under the motion, the record discloses that the appeal is not from a judgment for the recovery of money, but is from a judgment confirming a special assessment for local improvements, on appeal to the superior court from the city council of the city of Seattle. It is therefore manifest that the judgment could not be stayed without an order of the court fixing an amount for a supersedeas bond. The record neither discloses that the court ever fixed any amount, nor that appellant ever ashed for such an order. The amount of the obligation stated in the bond as given is $300. While it’ contains some of the recitals of an ordinary supersedeas bond, yet inasmuch as the necessary preliminary step to effect a stay of such a judgment was not tahen, it could in no event have become a stay bond, regardless of the amount stated in it. Under such circumstances the bond is a mere nullity in respect to the stay, and from its own recitals we tbinh it is also clear that it was not intended as a supersedeas bond. It limits liability to “all costs, etc., not exceeding in amount or value the above named original judgment besides costs on appeal.” Liability is therefore limited merely to the judgment of $18.90 costs, the amount adjudged below, and to the costs on appeal. Thus it clearly appears that there was no intention to stay proceedings under the judgment confirming the assessment roll. The bond is sufficient in form and amount as an ordinary appeal bond, and any surplus recitals ordinarily used in a stay bond are merely immaterial. King v. Branscheid, 32 Wash. 634, 73 Pac. 668. Tbe motion to dismiss tbe appeal is denied.

Appellants are tire owners of certain real estate in tbe city of Seattle, and tbe city sought to assess said property for tbe purpose of paying tbe costs and expenses of regrading Pike and East Pike streets. They filed witb tbe city council written objections to tbe assessment roll. Tbe objections were overruled, and tbe objectors appealed to tbe superior court. When tbe matter came on for bearing in tbat court it was urged by tbe city tbat, in tbe consideration of the appeal, the superior court was restricted to matters appearing upon tbe face of tbe transcript certified by tbe city clerk. Tbis view was adopted by tbe trial court, and all evidence offered in support of tbe objections to the assessment was rejected. Judgment was entered confirming tbe assessment roll, and from tbat judgment tbis appeal is prosecuted.

It is contended by appellants tbat tbe court erred in refusing to bear testimony on tbe appeal. Tbis subject involves an examination of chapter 118 of tbe session laws of 1901 [Laws 1901, p. 240], which is an act authorizing tbe levy and collection of special assessments for local improvements in cities of tbe first clagfe. Section 2 of tbe act provides for filing witb tbe city council written objections to tbe assessment roll, and also tbat tbe decision of tbe council of other legislative body may be reveiwed by tbe superior court on appeal thereto. It is provided tbat tbe court shall bear and determine tbe appeal without a jury, and shall confirm, correct, modify, or annul tbe assessment, in so far as the same affects the property of tbe appellant. Tbe superior court appears to have construed the statute as conferring upon tbat court only tbe ordinary review powers of an appellate court, witb no power to bear and consider evidence tbat was not beard by tbe subordinate tribunal and duly certified by it.

"We do not believe that such was the intention of the legislature. If such were the case, a protestant would be compelled to fully and at length introduce his evidence before the city council, preserve the same, and take it to the superior court, or he could not secure a review upon the facts. The statute provides no method whereby a protestant can compel the attendance of an unwilling witness before the city council, and no other method is provided for obtaining his testimony. There is neither provision for administering oaths to witnesses who may appear before the council, nor for certification to the superior court of any testimony taken. The statute specifies a. copy of the notice of appeal, a transcript of the assessment roll, a copy of the objections filed with the city clerk, and of the order of the council confirming the assessment roll, as necessary to be certified on appeal, and then adds: “and the record of the council or other legislative body with reference to said assessment.” The term “record,” as used, cannot reasonably be said to include the testimony, but rather refers to such record as the minutes of the proceedings of the council upon the subject. Doubtless the purpose of the written objections is to bring to the attention of the council the fact that the correctness of the assessment is challenged, and the reasons therefor. An opportunity is thus given for further and more complete investigation by the council, if it shall be disclosed to enter upon it. But the statute evidently did not contemplate that a protestant can demand the hearing of testimony as a matter of right, together with a full and exhaustive investigation of a judicial nature before a nonjudicial body. That right should, however, be accorded him somewhere, and 'we think the statute contemplates that he shall have it in the superior court, a tribunal possessing all the necessary attributes and powers for judicial determination. When, therefore, an objector has properly, in writing, called the attention of the city council to his reasons for protesting against the assessment, and has duly appealed, he is entitled to submit, and have considered on the appeal, all competent evidence he may offer in support of his objections.

Certainly, much of the evidence offered, as disclosed by the statement of facts, was material and vital in support of the issues raised by the objections. The court did not undertake to pass upon its materiality or competency, but rejected all evidence for the reasons aforesaid. There are, therefore, no assigned errors before us for review as to the rejection of evidence for want of competency. The error of the court consisted in trying the case as a whole upon a wrong theory, and in view thereof it remains for us to consider what shall now be done with the case on this appeal.

The statute authorizing the appeal to this court states as follows: “And the supreme court on such appeal may correct, changes, modify, confirm, or annul the assessment in so far as the same affects the property of the appellant.” It does not follow, however, that no other power resides in this tribunal in such a case as is now before us. The statute has in view a case which is fully here on appeal, so that intelligent action may be taken. This case is not so here, but it is not because of any fault of appellants^ and they should not be left without opportunity to submit their evidence and be heard thereon. The statute undoubtedly intends that this court shall review and determine the facts as ;well as the law questions involved and, in aid of our jurisdiction to do so, we doubtless might remand the case for the taking of testimony to be returned here for our examination. But we believe the whole case should he heard and determined by the superior court. The determination of that court may put an end to the contest. We therefore think the case should be remanded to the superior court, with instructions to' vacate the judgment appealed from, and then proceed to a full trial and judgment upon, all questions of law and fact involved, permitting the formal introduction of testimony, and hearing and determining the case as is done in equity causes. It is so- ordered, and appellants shall recover their costs on this appeal.

Mount, 0. J\, Fullerton, Crow, Rudkin, Root, and Dunbar, JJ., concur.  