This cause is before us upon a motion of respondent to dismiss the appeal from the judgment for failure to file the transcript within the time prescribed by rule 2 of this court.

But the certificate of the clerk shows that no appeal has ever been taken,—the notice of appeal having been given January 7, 1889, and no undertaking on appeal having been filed until January 28, 1889. In such a case the rule heretofore seems to have been to refuse to *62hear the party who claims to have appealed, and to refuse to “ dismiss,”—there being, really, nothing to dismiss. (Biagi v. Howes, 63 Cal. 384; Reed v. Kimball, 52 Cal. 325.)

The motion to dismiss is denied.

Sharpstein, J., Paterson, J., Works, J., and Beatty, C. J., concurred.

Rehearing denied.