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District Court of Appeal, Fourth District, California.


Civ. 1185.

Decided: March 15, 1935

Ed. P. Sample and Wm. H. Wylie, both of San Diego, for appellant. Seymour W. Wurfel and Charles B. De Long, both of San Diego, for respondent.

The respondent has moved to dismiss this appeal on the ground that no proceeding for the preparation of a bill of exceptions or of a transcript is pending in the trial court; that the time to institute any such proceeding has expired; that no request for the preparation of a clerk's transcript has been filed; and that the time within which the preparation of a clerk's transcript might be requested has expired.

Notice of this motion was filed in this court on February 8, 1935, the motion being noticed for March 12, 1935. On February 21, 1935, a clerk's transcript on appeal was filed here. The Code sections and cases cited by the respondent in support of the motion all relate to the preparation of a bill of exceptions or of a reporter's transcript prepared under the alternative method. No authorities are cited relating to an appeal upon a clerk's transcript alone. The provisions of sections 950 and 953 of the Code of Civil Procedure have been complied with and the transcript was filed long before the time set for hearing of the motion. Upon the authority of Snodgrass v. Hand, 125 Cal. App. 265, 13 P.(2d) 769, and the cases therein cited, the motion to dismiss is denied.

BARNARD, Presiding Justice.

We concur: MARKS, J.; JENNINGS, J.