On Petition for Eehearing.
Bruce, J.Defendant and appellant urges in his petition for re*297hearing that this court has erroneously held that the defendant, Christ Sather, by marrying the widow of Ole Komfo, acquired a legal interest in his estate. We, of course, held no such thing. When we used the words, “that he was interested in the estate of the deceased,” all we intended to say was that on account of the fact that he had married the widow and the heir of the deceased, it was natural that he should desire that unnecessary expenses of administration should be avoided.
• Appellant next urges that “the court has overlooked the fact that respondent acquiesced in the order of Judge Goss by accepting the sum of $129.70 costs ordered to be paid by Sather to Tubbs, and hence cannot accept the benefits of the order and repudiate the balance.”
There is no merit, however, in this point. In the first place there is nothing in the record to show that the $129.70 costs were ever paid to the respondent or ever accepted by him. In the second place, even if accepted by him, there would be no waiver of plaintiff’s rights. The costs were paid by the defendant, Sather, on the 2d day of February, 1909. The affidavit on the motion to show cause why the judgment should not be satisfied was not subscribed to until February 3, 1910, nor was the order of Judge Goss made until the 22d day of November,. 1910. As a matter of fact no tender of the horse was ever made, and even the affidavit does not claim that it was made before the 4th day of December, 1909. It is thus clear that the costs were paid long before the tender or pretended tender of the horse. At the time of the-payment of the costs, therefore, the plaintiff had judgment against the defendant for the return of the horse or in default thereof for the sum of $300, the value thereof, and in addition for the costs mentioned. It cannot possibly be claimed that when one has a judgment against another for the return of a horse and for costs, and he accepts the payment of the costs which are paid to the clerk, he thereby relinquishes his claim to a return of the animal. Of course, he might do so and accept the payment of the costs as a full satisfaction of his claim, but there is no such proof in the record that this was done.
Counsel also urges that we have overruled various provisions of the Probate Code. We have done no such thing. All we have held is that a man is a free moral agent; that if an action is brought against one man, or even an estate, and another person chooses to substitute himself as defendant, and agrees to be bound by the judgment and to *298waive all technicalities, he may be permitted to do so and may be taken at his word, and that if he has submitted to the jurisdiction of the court, allowed a jury to be impaneled and the case to be tried, has taken no appeal, has given notice of his willingness to abide by the judgment, and to tender the property and has acquiesced in the judgment by paying the costs and by asking for its satisfaction, he cannot, more than three years afterwards, question that judgment, set aside his stipulation, and deny the jurisdiction in which he has so long acquiesced.
The petition for a rehearing is denied.