Stiavetti

This is a motion to dismiss, an appeal.

No transcript on appeal from the judgment was served or filed within the forty days prescribed by rule II of this court [ 78 Pac. vii ], and consequently the appeal must be dismissed unless respondent, in making this motion, has himself failed to comply with the rules.

Appellant contends that according to rule VI [ 78 Pac. ix ] of this court the certificate of the clerk of the trial court required to be presented on the motion is a moving paper, and that a copy of it should have been served upon the appellant with the notice of the motion. The point, however, has been decided contrary to appellant’s contention in the ease of Pio v. Aigeltinger, 97 Cal. 81, 83 , [ 31 Pac. 895 ], and the rule is precisely the same now as it was when that ease was decided, ( 64 Cal. 639 and 144 Cal. xliii , xliv, [ 78 Pac. ix ]). The court there held that the certificate was merely evidence of facts, and that it was unnecessary to file or present it before the hearing.

Upon the authority of that case we hold that the objection to the hearing of the motion is untenable; and that as the transcript was not filed within the prescribed time the motion to dismiss…