I dissent from the order denying a rehearing. The order of the superior court cannot be affirmed without deciding one or the other of two propositions against the appellants, and neither of them has been decided or discussed in the Department opinion. Appellants contend: 1. That if the cause referred to in the stipulation had been decided by the supreme court on the merits, affirming the validity of the bonds of San Diego, the plaintiff could not then have dismissed the action, but would have been bound to enter the judgment as stipulated; and 2. That being so bound in the contingency stated, the plaintiff became absolutely bound when solely through its default in prosecuting the appeal referred to the condition of its obligation became impossible of fulfillment. These contentions may or may not be sound, but the order cannot be affirmed without deciding at least one of them in the negative.