Field, C. J. concurring.
The defendant moves to reinstate the appeal in this case, which was dismissed for failure to prosecute. The plaintiff shows, in opposition to the motion, that in fact no appeal has been taken, as the sureties upon the undertaking were excepted to, and justified before a County Judge of a county different from that in which the judgment was rendered. This we regard as a valid answer to the motion; the case of Roush v. Van Hagen (18 Cal. 668) settles the construction of the statute.
*513The motion is denied.
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 to 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.