Randall

Motion to affirm the judgment upon the ground that the appeal is without merit and merely for delay.

A motion heretofore made herein to dismiss the appeal was urged upon the same grounds as are now urged in support of the present motion, and was denied. (Randall v. Duff, 104 Cal. 126 .) In the opinion then given reference was made to Howell v. Howell, 101 Cal. 115 , in which it was said: “When an appeal has been regularly taken from an order of the superior court the lack of a bill of exceptions embodying and authenticating its proceedings is not a ground for dismissing the appeal, but rather for a judgment of affirmance, if, as is usually the case, there is in the absence of such bill of exceptions nothing in the record upon which the action of the superior court can be properly reviewed”; and the respondent presents that case as authority for his present motion. The opinion in that ease does not authorize a motion for the affirmance of a judgment prior to a hearing upon the appeal in its regular order, but holds that upon such hearing a judgment of affirmance would necessarily be given. The additional ground for the motion, that as the judgment appealed from was entered in…