Engelberg

This is a motion to dismiss the defendant’s appeal from the judgment herein on the ground that appellant has failed to have prepared and to file a record on appeal within the time required. The facts upon which respondent relies are certified by the clerk of the trial court to be as follows:

Judgment was entered September 28, 1926. Thereafter on the same day the defendant filed his notice of appeal from the judgment and notice of motion for a new trial. The “said motion for a new trial has never been argued nor presented to said superior court, and no order granting or denying a new trial has ever been made or entered in said cause. ’ ’ No request has been made “for a transcript under the provisions of section 953a of the Code of Civil Procedure”; “no bill of exceptions has ever been filed, . . . nor has any transcript in said action been prepared or filed under the provisions of said section 953a; ... no order has been made or entered by said superior court allowing additional time within which to prepare or serve a draft of a proposed bill of exceptions upon said appeal; . . . and ... no proceedings for a bill of exceptions or transcript, under said section 953a, are pending in…