Wall

This is a motion to dismiss an appeal from a judgment rendered by the superior court, on the ground that the transcript of the record was not filed within the time prescribed “by law.”

By section 1 of Rule I of the rules of the supreme court and the district courts of appeal it is provided that, in a civil action, within forty days after an appeal is perfected the appellant must “serve and file the printed transcript of the record. ...” If “not filed within the time prescribed, the appeal may be dismissed, ...” (See. 1, Rule V.)

Prom the affidavit presented in support of the motion herein it appears that for a period aggregating considerably more than forty days after appellant served and filed his notice of appeal and immediately next preceding the filing of the notice of motion to dismiss herein, the appellant failed to comply with the rule to which reference has been had. In reply thereto respondent to this proceeding in effect admits the truth of the statements as shown by the affidavit of the moving party; hut in defense presents the additional fact that no notice of the entry of judgment was ever given to him in writing, nor was such “written notice waived in writing or by…