Widber

Motion to dismiss the appeal.

The appellant was sued in his official capacity as treasurer of *512 the city and county of San Francisco, and has appealed from the judgment against him. Section 946 of the Code of Civil Procedure provides that the court below may in its discretion dispense with an undertaking on appeal, “ when the appellant is an executor, administrator, trustee, or other person acting in another’s right,” and in Scheerer v. Edgar, 67 Cal. 377 , it was held that this section applied to an action against a municipal officer in his official capacity. On the 19th of July, 1892, after the defendant had given his notice of appeal, the Hon. James M. Troutt, one of the judges of said superior court, and the presiding judge thereof, while holding a session of one of the departments of the court at its court-room, and engaged in the trial of a cause then pending in said department, upon the motion of the attorney for the defendant, made and signed an order dispensing with any undertaking upon said appeal, which he returned to said attorney, and it was on the same day filed with the clerk, but no record thereof was ever made in the minutes of the court. The respondent now…