— I dissent from the order of the court denying a rehearing of this cause, not because any of the propositions stated in the opinion of the Department is incorrectly decided, but because the principal assignment of error presented and argued in the brief of appellant is entirely ignored.
The action is upon the undertaking of defendant guaranteeing the payment of the judgment of Wofford.against Fleming. The complaint shows an assignment of the undertaking of the surety, but does not show any assignment of the judgment, and the contention of the appellant is that there can be no recovery against the surety by one party while the obligation .of his principal is held by another. This proposition is seriously urged, and is supported by authority. It does not answer itself and is not trivial. I do not think the case should be disposed of without a reference to it, or that the petition for a rehearing, based upon the omission of the court to notice it, should be denied.