Swasey

The respondent in this case moves on several grounds to dismiss the appeal.

1. The transcript contains a copy of an undertaking on appeal, with its indorsements, certified by the county *137 clerk to be correct, from which it appears that an undertaking on appeal in due form was properly filed, but this court has held that such evidence of compliance with the statutory provisions as to taking and perfecting appeals (Code Civ. Proc., secs. 940 et seq.) does not satisfy the express requirement of section 953, that the clerk or attorneys must certify that an undertaking in due form has been properly filed. (Railroad Co. v. Anderson, 77 Cal. 299 .)

In this case, however, the appellant has offered to do what in that case it refused or neglected to do, i. e., to file an amended certificate pursuant to our rule No. 13. I think he should be allowed to file his amended certificate, and that such amended certificate should be held to cure the defect in the original.

2. The notice of appeal properly entitled in the action, and dated and served on February 6, 1889, refers to the judgment as entered October 24, 1888, and to the order denying a new trial as entered January 25, 1889. The date…