Anthony

This is an appeal by the defendant from a judgment entered against him in the superior court of San Diego County, and from an order denying his motion for a new trial. It was taken by filing in the court below a proper notice and undertaking on February 10, 1893. The transcript was filed in this court on March 18, 1893. The respondent now moves to dismiss the appeal upon the ground that, when it was taken, another and prior appeal from the same judgment and order was pending and undisposed of in this court.

It appears that an appeal from the judgment and order entered and made in the action was properly taken by the defendant on December 22, 1892, but no transcript on that appeal was ever filed in this court. On February 3, 1893, the *603 respondent filed notice of motion to dismiss the appeal upon the ground that the transcript had not been filed within the time prescribed by rule' 2 of the court. On February 9, 1893, the defendant and appellant filed in this court a paper signed by his attorneys and dated February 7,1893, by which he “stipulates and agrees that the appeal heretofore taken in the above-entitled cause .... be dismissed, without prejudice to the taking of a new…