This is a motion to dismiss the appeal on the ground "that more than forty days have elapsed since the taking of said appeal and no transcript on appeal has been prepared, served or filed," and respondent also asks the court to assess damages for the "taking of a vexatious appeal for delay." The notice of appeal was given and filed on January 13, 1910, and an undertaking was filed on the same day. Nothing further seems to have been done in the prosecution of the appeal and no excuse is offered for the delay. The notice of the motion to dismiss was given on March 6th and appellant did not appear at the hearing. Under the circumstances we must assume that the purpose of appellant in taking the appeal was as stated by respondent.

The appeal is therefore dismissed, with damages against appellant assessed at $30.

Chipman, P. J., and Hart, J., concurred. *Page 153