This is a motion to dismiss the appeal taken by the defendant from a certain portion of the judgment in the above entitled action.
The record on the motion shows that the court below, on the fourth day of December, 1912, upon a verdict previously returned in the action by a jury and in accordance with the terms thereof, entered a judgment in favor of the plaintiffs and against the defendant for the aggregate sum of one thousand and fifty dollars; that the complaint was in two counts, upon one of which the plaintiffs were awarded the sum of eight hundred and fifty dollars and upon the other the sum of two hundred dollars; that, after the entry of judgment, the defendant satisfied so much thereof as involved the amount allowed on the second count, and that, on the ninth day of December, 1912, he took an appeal to this court from that part of the judgment awarding to the plaintiffs the sum of eight hundred and fifty dollars, by duly filing and serving notice of the same; that, on said ninth day of December, 1912, the defendant executed an undertaking on appeal and deposited the same with the clerk of the superior court of Modoc County, in which the action was tried. *Page 462
It is further made to appear (and no counter showing thereon is made) that the defendant or his attorneys have never filed or presented a bill of exceptions or other record on appeal in the action, nor requested the clerk of the court to certify to a correct or any "transcript of the record of said case."
No transcript or any record of the case has been filed in this court.
Under the terms of rules II and V of this court [160 Cal. xlii, xlvi] and the record on this motion as it is above recited, no other course is left open but to dismiss the appeal, and it is so ordered.
Chipman, P. J., and Burnett, J., concurred.