Laykin

The respondent has filed a motion to dismiss the appeal in this action, upon the ground that the transcript was not filed within the time required.

From the certificate of the clerk of the superior court it appears that judgment in favor of the plaintiff was entered on December 4, 1930, from which judgment the defendant appealed on the eighth day of said month and filed a notice requesting preparation of the transcript in accordance with the provisions of section 953a of the Code of Civil Procedure. Subsequently and on motion of the plaintiff the conclusions of law were modified and a different judgment was entered, a motion for a new trial was interposed, which was denied, and on March 19, 1931, the defendant appealed from the judgment last mentioned, and the transcript was filed July 2', 1931. The instant proceeding is based upon an order of the trial court which recites, in part, as follows: “No undertaking to secure payment of the cost of the transcript was ever given as required by section 953b, Code of Civil Procedure, either following the notice to prepare transcript which was filed on December 8, 1930, or following notice of March 19,. 1931, or at all, and, according to…