This matter involves two separate motions, the first of which being a motion to dismiss an appeal and the second being a motion to affirm the judgment rendered in the lower court.

In part, the ground specified in each of such motions is identical with the other and consists of a contention on the part of respondent to the effect that the record on appeal was not certified by the shorthand reporter, or settled by the judge before whom the cause was tried. In the motion to dismiss the appeal the additional ground is specified that the reporter’s transcript was ‘not filed “within the time required by law.”

As affecting the ground last stated, Rule V of the supreme court and district courts of appeal contains the following:

Although the register in the clerk’s office discloses facts from which it may be concluded that the reporter’s transcript was not originally filed “within the time required by law,” it appears that the transcript was on file at the time the notice to dismiss the appeal was given. It follows that respondent may not avail itself of appellant’s dereliction in the first instance.

With reference to the grounds that the reporter’s transcript was not properly certified by the shorthand reporter who transcribed the testimony given at the trial, nor settled by the judge before whom the- cause was tried, it appears that two eases were pending between the same parties; that the first case having been tried, it was stipulated by respective counsel in substance that, so far as applicable on the trial of the second case, the transcript of the evidence produced in the first ease might be used on the trial of the second case. It is also shown that other evidence in addition to that produced on the trial of the first case was introduced on the trial of the second case; that in making up the record on appeal, that part of the evidence only which was actually produced at the trial of the second case, independently of the transcript of the evidence in the first case, was certified by the shorthand reporter and settled by the judge; and that as to the remainder of the evidence the parties stipulated as follows:

The affidavit of the judge who presided at the trial of the second case shows that by stipulation of the parties to the action the evidence which was received in the former ease was read and considered in evidence in the second case; that a date was set for the settlement of the transcript and ree ord in the second case, which resulted in the first instance in the settlement of the transcript of the testimony which was actually given on the hearing of the second ease; that, according to the recollection of the judge, he refused to settle the copy of the transcript of the evidence taken in the first case for the reason that, in his opinion, it was necessary to incorporate the transcript in the first case in the transcript in the second ease, or for respective counsel to stipulate that such transcript might be used without being so incorporated; that he was subsequently informed by counsel representing the plaintiff in the second action that he had secured such written stipulation and that the transcript of the oral testimony taken in the second case might be settled; that he suggested to counsel that he would settle the transcript if the portions of the testimony considered in the first case were recopied, certified by the reporter, and presented for settlement, but that no such transcript as suggested by him was ever presented to. him for settlement, and that he refused to settle the copy of the transcript filed in the first case for the reasons hereinbefore set forth.

The record herein further discloses the facts that, notwithstanding the stipulation by the parties, the reporter’s transcript affecting such evidence was not certified by the shorthand reporter, nor settled by the judge, but that that part of the transcript which had been certified and settled was filed with the clerk of this court as a part of the record on appeal.

Respondent cites authorities to the effect that, in the absence of a properly authenticated transcript, notwithstanding a stipulation by the parties covering the situation, no record is presented upon which a reversal of the judgment of the lower court might be predicated, and consequently that this court is authorized - to dismiss the appeal and affirm the judgment. (2 Cal. Jur. 608, 631; see, also, In re Barney, 191 Cal. 18 [ 214 Pac. 853 ].) However, the later case of McMahon v. Hamilton, 202 Cal. 319 [ 260 Pac. 793 ], indicates in principle that the appellate court has the power to direct the lower court to so amend its certificate or settlement of the record on appeal as to make it speak the truth. In that case the court, in part, used the following language:

In the instant case, the evidence produced in the first case was, by means of a transcript thereof, used in the trial of the second case.- Clearly, it was the intention of the parties to the litigation that such evidence should be certified to and settled by the judge before whom the second case was tried, as a part of the record on appeal, and that it should be included within that part of such record as had already been settled by the judge. In such circumstances, and considering the inherent power of the court, as announced in the case of McMahon v. Hamilton, supra, to direct the amendment of the record, it would seem that the respondent should not be permitted to prevail with reference to his motion to dismiss the appeal. The motion to affirm the judgment, being wholly dependent upon the granting of the motion to dismiss the appeal, necessarily fails as a result of the denial of the latter motion.

It is ordered that each of the motions be and it is denied.

Conrey, P. J., and York, J., concurred.

A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 8, 1928.

All the Justices concurred.