Opinion
The motion is denied. Rehearing Denied 21 Cal. 512 at 513.
Appeal from the Fourth Judicial District, County of San Francisco.
On motion of respondent, based on a certificate of the Clerk of the District Court, the appeal was, on the fourth of March, 1863, dismissed. Subsequently, during the same term, appellant moved on affidavit to reinstate the appeal, and in opposition to the motion, respondent showed by the certificate of the Clerk of the District Court that the sureties upon the appeal bond had been excepted to and had justified, not in San Francisco County, but before the County Judge of Contra Costa County, at Martinez.
COUNSEL:
A. Williams, for Appellant.
H. O. Beatty, for Respondent, cited Roush v. Van Hagen (18 Cal. 668).
JUDGES: Cope, J., delivered the opinion of the Court. Field, C. J., concurring.
OPINION
COPE, Judge
Subsequently, appellant petitioned for a rehearing, and offered to execute a new undertaking, and the following opinion was delivered by Cope, J. Field, C. J. concurring:
The petition for a rehearing must be denied. The offer to execute a new undertaking comes too late. It should have been made before the motion to reinstate was disposed of. The defendant chose, for the purposes of the motion, to rely upon the old undertaking, and he must abide the result.
Petition denied.