Goff

When this case was in Department it was decided upon the record then before this court that this action upon a rejected claim presented against the estate of Benjamin Healey, deceased, was not commenced within three months after its rejection and was, therefore, barred by the provisions of section 1498 of the Code of Civil Procedure. Upon petition for a rehearing and the presentation of a supplemental record it was shown that the action upon the claim was in fact commenced within the time limited by the code provision. The rehearing was therefore granted that the appeal might be considered on the merits.

In the court below judgment was given for the defendant after sustaining a demurrer to the second amended complaint. The material facts alleged are as follows: In an action against William Tardiff this plaintiff obtained a judgment for $462.55. Tardiff appealed from the judgment, giving an undertaking to stay execution with the Union Surety and Guaranty Company as surety thereon. To induce the surety company to execute the undertaking Tardiff and Benjamin Healey, defendant’s testator, entered into a written contract with the surety company whereby they severally agreed to “pay…