
    BATES v. SCHROEDER.
    No. 12,712;
    August 20, 1888.
    
      19 Pac. 121.
    Appeal—Failure to File Transcript—Dismissal.—A cleric of appellant’s attorney, during the illness of his employer and against his directions, took the appeal, but failed to file a transcript. Appellant’s attorney was first apprised that appeal had been taken by respondent’s notice of motion to dismiss, when he served and filed a transcript. Held, that the appeal would not be dismissed.
    APPEAL from Superior Court, San Mateo County; E. F. Head, Judge.
    Motion to dismiss appeal, on the ground that no transcript was filed in time. The affidavit of appellant’s attorney, heard upon the motion, alleged that appellant, defendant below, interposed a demurrer to the complaint, which was overruled, and judgment rendered for plaintiff; that within ten days after rendition of the judgment deponent was taken sick, and confined to his bed and room for about a month, being unable to attend to any business; that, while so confined, he was informed that defendant had requested one of deponent’s clerks to take an appeal in the cause, but that he had directed the clerk not to take the appeal, and supposed his directions had been obeyed; that he was first apprised that appeal had been •taken by respondent’s notice of motion to dismiss; that, upon receiving such notice, he caused a transcript on appeal to be made out, served, and filed in this court, and that it was his intention in good faith to prosecute the appeal; that the judgment appealed from is, in his opinion, manifestly erroneous.
    D. M. Delmas for appellant; J. C. Bates for respondent.
   PER CURIAM.

On an examination of the papers herein the court is of opinion that the appeal should not be dismissed, and the motion must be denied.  