ON REHEARING.
STOCKSLAGER, C. J.A petition for a rehearing has been filed in this ease, wherein it is contended that this court did not pass upon the sufficiency of the undertaking on appeal. While it is true that we did not point out specifically wherein the undertaking was insufficient, this court held that an application to amend an undertaking on appeal must be made before the motion to dismiss the appeal has been granted, thereby, inferentially at least, holding that said undertaking was insufficient. As a matter of fact it is clearly so.
Under the provisions of an act approved March 11, 1903 (Sess. Laws, p. 372), regulating appeals from probate to district courts, it is provided, among other things, that the undertaking must be in writing, with at least two sureties “to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal or on a dismissal thereof not exceeding one hundred dollars.” The undertaking under consideration fails to provide that the appellant will pay all damages and costs which may be awarded against him “on a dismissal thereof,” and is insufficient in that respect as held by a majority of the court in Jackson v. Barrett, post, p. 465, 86 Pac. 270. And this court held that after the motion to dismiss had been granted, it was then too late to amend. That being true, we find nothing in the petition that would justify us in granting a rehearing. A rehearing is therefore denied.
Ailshie, J., and Sullivan, J., concur.