This is a motion to dismiss the appeal from the judgment on the ground that appellant has failed tó file its transcript on appeal within the time allowed by law and the rules of the supreme court. Notice of the appeal was given on the eighth day of July, 1912, and, on the twelfth day of said month, the proper undertaking was filed. On the first day of said month a notice of intention to move for a new trial was served and filed and thereafter, on September 10, 1912, a proposed statement on motion for a new *382 trial was settled and allowed and, the matter coming oh regularly for hearing, the said motion for a new trial was denied, on October 28, 1912. On the fifth day of November, following, appellant was served with a notice of the order denying said motion. No stipulation was made by the parties extending the time in which to file the transcript and appellant has not requested the clerk of the court below to make or to certify to a correct transcript of the record in said cause. The notice of the motion to dismiss the appeal was served on the twenty-fourth day of January, 1913, and came on regularly for hearing on the tenth day of February, following,. and at that time no transcript was on file in this court and no reason was urged by appellant why the motion to dismiss the appeal should not be granted.

Under the foregoing statement, it is clear that, by virtue of rules 2 and 5 of the supreme court, [160 Cal. xlii, xlvi, 119 Pac. ix, x], the motion herein made should prevail, and it is therefore ordered that the appeal be dismissed.

Chipman, P. J.

Burnett, J.

Hart, J.