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District Court of Appeal, Fourth District, California.

DUTY v. DENNIS et al.

Civ. 1938.

Decided: August 19, 1935

Frank Birkhauser, of El Centro, for appellant. William H. Wylie and Ed P. Sample, both of San Diego, for respondents.

This motion by respondent to dismiss the appeal herein is based on the failure of appellant to have filed a transcript of the record within the time prescribed by the rules of this court for filing such document. The motion is supported by the certificate of the county clerk. This certificate shows that judgment was entered on May 4, 1934, and that on May 11, 1934, appellant filed notice of appeal. The clerk's transcript on appeal was thereafter prepared and was sent to the clerk of this court. It was not, however, accompanied by the fee required by law to be paid for the filing thereof. The records of this court show that the filing fee has not been paid and that for this reason the aforesaid transcript has not been filed. It is obvious that the appellant was not entitled to have the transcript filed without payment of the filing fee. Due notice of the hearing of this motion was served on appellant's counsel and he did not appear to contest the motion. No excuse for appellant's long-continued failure to pay the filing fee has been presented.

It is therefore ordered that the motion be granted and the appeal is accordingly dismissed.

JENNINGS, Justice.

I concur: MARKS, Acting P. J. BARNARD, P. J., being absent, does not participate herein.

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