Opinion
Rehearing denied.
Appeal from a judgment of the Superior Court of the city and county of San Francisco.
Motion to dismiss appeal.
COUNSEL:
O'Brien, Morrison & Daingerfield, for Appellant.
J. D. Sullivan, and Henry McCrea, for Respondent.
JUDGES: In Bank. McFarland, J. Sharpstein, J., Paterson, J., Works, J., and Beatty, C. J., concurred.
OPINION
McFARLAND, Judge
This cause is before us upon a motion of respondent to dismiss the appeal from the judgment for failure to file the transcript within the time prescribed by rule 2 of this court.
But the certificate of the clerk shows that no appeal has ever been taken, -- the notice of appeal having been given January 7, 1889, and no undertaking on appeal having been filed until January 28, 1889. In such a case the rule heretofore seems to have been to refuse to hear the party who claims to have appealed, and to refuse to "dismiss," -- there being, really, nothing to dismiss. (Biagi v. Howes , 63 Cal. 384; Reed v. Kimball , 52 Cal. 325.)
The motion to dismiss is denied.