Bethell

Motion to dismiss the appeal.

Judgment was rendered in this case in favor of thplaintiff, June 24, 1890, and an order was afterwards made denying defendant’s motion for a new trial. From this order the defendant appealed on the 29th of April, 1892. May 25,1893, the respondent gave notice to the appellant of this motion to dismiss the appeal, upon the ground that .the appellant had failed to file the printed transcript of the record within the time prescribed by rule II of this court. At the time of giving the notice the transcript on appeal had not been filed and was not filed until June, 1893.

*176 It appears from the affidavits that in. the latter part of June, 1892, Mr. Weller, at the request of the attorney for the appellant, went to the office of the attorney for the respondent in Martinez and there met W. S. Wells, who informed him that the attorney for the respondent was absent from the county of Contra Costa; that said attorney for the respondent was in fact absent from said county, and did not return thereto until about the 6th of July; that Weller asked affiant to certify to said transcript for said respondent’s attorney, but was informed that he had no authority to…