Wiersma

Respondents move to dismiss the appeal herein and to strike from the files the opening brief of appellant for the following reasons:

There was filed in this court on October 11, 1938, a typewritten transcript which was certified by the trial judge under date of August 31, 1938, as constituting the judgment roll, as the same appeared in the files and records of the within action, followed by the court reporter’s transcript, documentary evidence, and other matters, proceedings and records, and in which appears a stipulation of the attorneys of record dated July 18, 1938, as to the correctness both of the judgment roll and the reporter’s transcript. The certificate of the clerk of the superior court attached to the notice of motion herein shows that while no clerk’s transcript under section 953a of the Code of Civil Procedure was filed, an engrossed bill of exceptions was filed, settled and allowed on August 31, 1938, and that, according to the register of actions, the reporter’s transcript was settled on August 31, 1938.

While it is true that forty-one days elapsed between the date of settlement and certification and the date of filing, and rule I, section 1 of the Buies of the…