This is an application under section 688 of the Revised Statutes for a writ of mandamus, directed to the supreme court of Washington territory, to reinstate an appeal from a decree of the district court of the territory for the First judicial district in a suit in equity, wherein Elizabeth Denney, executrix of the estate of Timothy P. Denney, is plaintiff, and Hollon Parker and John F. Boyer are defendants. The decree in question was against each of the defendants severally, and the appeal was taken by the defendant Hollon Parker. Upon his petition heretofore filed, a rule to show cause has been issued, to which the chief justice and associate justices of the supreme court of the territory of Washington, on behalf of the court, have made and filed their return. They set forth that, at the time the said Hollon Parker sought to appeal said cause referred to from said district court to said supreme court of Washington territory, the manner of taking such appeal was defined by section 458 of the territorial Code, still in force, as follows:
'Sec. 458. An appeal or writ of error is taken by filing with the clerk of the court in which the judgment or order of the court appealed from is entered a notice, stating the appeal from the same, or some specific part thereof, and serving a copy of said notice on the adverse party or his attorney. Every notice of appeal or writ of error must be signed by the party taking the same, or his attorney of record, and must contain the title of the district court in which the proceedings sought to be reviewed were had; the title of the cause as in the district court; a particular description of the judgment, decree, or order sought to be reviewed; and in case of appeal, a particular description of every decision, ruling, order, or decree by which the appellant claims to have been aggrieved, and which he relies upon as grounds for a reversal or modification of the judgment, order, or decree; and, in case of a writ of error, a particular description of the errors assigned.'
The return further sets forth that the defendant John F. Boyer did not join in said appeal as an appellant, nor was he made an appellee therein, as appears by the notice of appeal which is set out. This notice of appeal is entitled, 'In the district courto f the First judicial district of the territory,' with the title of the cause, and is addressed to Timothy P. Denney, the plaintiff, James K. Kennedy, W. A. George, John B. Allen, and T. J. Anders, attorneys for plaintiff, and A. Reeves Ayres, clerk of the court, giving notice that the said Hollon Parker in the above-entitled action 'hereby appeals to the supreme court of Washington territory from the decree and judgment therein made and entered in the district court of the First judicial district of Washington territory, in and for Walla Walla county, in favor of the plaintiff, Timothy P. Denney, in said action, and against the defendants, Hollon Parker and John F. Boyer, and from the whole thereof; said decree and judgment rendered on the thirty-first day of March, 1882, against the defendants, Hollon Parker and John F. Boyer.' It is further stated in the return that no notice of appeal was served on Boyer, nor was service thereof waived by him. The statute of Washington territory relative to co-parties on appeal is as follows:
'Sec. 454. A part of several co-parties may appeal or prosecute a writ of error; but in such case they must serve notice thereof upon all the other coparties, and file the proof thereof with the clerk of the supreme court.'
It is further set forth that section 464 of the Code of Washington territory prescribed the only means by which, in a cause appealed to the supreme court of the territory, the evidence upon which the same was tried could be certified to said supreme court. That section is as follows: