Duncan

This is a motion to dismiss an appeal because of the failure of defendants to file a transcript within the time prescribed by rule 2 of this court, and for damages. The appeal is from a judgment rendered against defendants for the sum of $1,233.35, and was perfected by the filing of an undertaking on appeal on June 24, 1893, and no transcript on appeal has been filed in this court; and it further appears from the certificate of the clerk of the superior court, dated August 23, 1893, that the defendants have not requested him to certify to any copy of the record. Upon these facts the appeal must be dismissed. At the time of giving notice of the motion to dismiss the appeal the respondent also gave notice that he would ask for damages upon the ground that the appeal was taken only for delay. This notice was based upon an affidavit of respondent, a copy of which was duly served upon appellants. This affidavit which was made by respondent states that after the rendition of the judgment appealed from “execution was duly issued in his .favor for the levy and collection of the amount due by said judgment, and after a levy by the sheriff upon sufficient property of defendants to have…