Winder

Motion to dismiss appeal from judgment.

1st. The respondent claims that the appeal should be dismissed, because of the failure of appellant to serve and file the printed transcript within the period fixed by the rules of this Court. The time within which the transcript must be served and filed, the penalty for failure to serve and file within such time, and the evidence upon which this Court will enforce the penalty, are all regulated by Rules of Court. The second rule requires that the appellant shall file and serve his printed transcript within forty days after the appeal is perfected; the third provides that if the transcript be not filed within the time prescribed, the appeal may be dismissed. The fourth rule is as follows:

In the case before us, respondent has not presented the certificate of the Clerk, made necessary by rule four.

2nd. But we think the certificate of the Clerk to the printed matter, asserted to be a transcript of the record, does not comply with the 953rd section of the Code of Civil Procedure.

Section 953 reads:

And the Clerk’s certificate reads:

The certificate contains no statement or recital that an undertaking on appeal “ in due form ” has been…