Beaver

Respondent asks that the appeal from the judgment herein be dismissed. The ground for the motion, as stated in the notice thereof, is that the transcript of the record to be used on the appeal has not been filed, and the time for filing the same has expired.

In support of the motion, a certificate of the clerk of the court rendering said judgment is presented. Among other facts disclosed by this certificate, it appears that the judgment was entered on January 24, 1907; that on the nineteenth day of February appellant duly served upon respondent his notice of appeal from said judgment. That on February 27, 1907, eight days after the service of said notice, appellant filed in the office of said clerk an undertaking on appeal. Section 940, Code of Civil Procedure, provides that “the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal an undertaking be filed. ’ ’

The notice of motion does not specify the failure to file the required undertaking within five days from service of the notice of appeal as a ground for dismissal of the appeal. This, however, is not necessary. The filing of the undertaking within the time fixed by the…