Benson

An appeal was taken according to the method prescribed by section 953a of the Code of Civil Procedure from a judgment in favor of respondent, who moved to dismiss on the ground that more than forty days had elapsed since the filing of the notice of appeal, and that the transcript on appeal had not, as provided by statute, been filed in this court. Respondent’s motion was duly served and filed on July 23, 1925. Thereafter, on July 25, 1925, the transcript prepared by the phonographic reporter was filed in the office of the county clerk of the county of Fresno, the clerk’s transcript having been prepared and certified by him on June 18, 1925; and upon notice to respondent the reporter’s transcript was, by the judge of the superior court before whom the action was tried, certified as provided by said section of the code, and both transcripts were, by the county clerk of said county, filed in this court, on August 3, 1925.

It appears from the record that judgment was entered in the action on April 2, 1925; that a notice of intention to move for a new trial was served and filed by appellant, which motion was thereafter, on June 2, 1925, presented and denied; that on June 9, 1925,…