
    [Civ. No. 1563.
    Second Appellate District.
    June 3, 1914.]
    FRED A. HOFER, Respondent, v. C. FRED GRUNDY et al., Appellants.
    Appeal—Motion to Dismiss fob Failure to File Transcript "in Time —When Premature.—A motion to dismiss an appeal from a judgment because of failure to serve and file the transcript within the time prescribed by rule II of the supreme court, is premature if made within forty days after the filing, by stipulation, of a substituted appeal bond.
    MOTION to dismiss an appeal from the Superior Court of Los Angeles County.
    The facts are stated in the opinion of the court.
    H. M. Barstow, and Howard E. Reach, for Appellants, Charles W. Fourl, for Respondent..
   CONREY, P. J.

Respondent moves to dismiss defendants’ appeal from the judgment herein upon the ground that appellants have wholly failed to serve and file a transcript within the time prescribed by rule II. The record shows that by stipulation a substituted bond on appeal was filed on March 19, 1914. Respondent’s notice of motion to dismiss the appeal was served and filed on March 21st, and was presented and submitted to the court on April 28th. Manifestly the motion was prematurely made and should be denied. It is so ordered.

'James, J., and Shaw, J., concurred.  