Attkisson

This cause is before us upon motion of the plaintiff and respondent to dismiss the defendant’s appeal.

The motion is based upon the county clerk’s certificate setting forth the following specifications, to wit:

As authority for the motion, attention is called to Rules 5 and 6 of rules governing practice in the supreme court and district court of appeal of the state of California, in effect on and after September 1, 1928. By reason of the omission of the clerk’s certificate, as hereinafter pointed out, it is only necessary to consider the application of the last sentence of Rule 6, which reads: “It shall be encumbent upon the party moving to dismiss to show by such certificate or by affidavit, that no proceeding for a bill of exceptions or transcript under section 953a, is pending in the trial court, and if no such proceeding was ever instituted, that the time to institute the same has expired.” The first paragraph of section 953a of the Code of Civil Procedure, after providing for the filing of a notice with the clerk specifying the particular matters which the applicant desires to have set forth in a transcript on appeal, fixes the time *for giving the notice to the clerk in…