JUDGES: De Haven, J. Beatty, C. J., and McFarland, J., concurred.
OPINION
DE HAVEN, Judge
This is an appeal by the plaintiff from a judgment in favor of the defendant. This is the second appeal plaintiff has taken from the same judgment. The former appeal was dismissed by this court on April 12, 1892, for failure to file the transcript within the time prescribed by rule No. 2, and the order of dismissal did not expressly provide that it was made without prejudice to the right of defendant to take another appeal. This being so, the dismissal of the former appeal was in its effect an affirmance of the judgment. (Code Civ. Proc., sec. 955.)
The order submitting this case for dec ision upon the merits will be set aside, and [32 P. 171] the motion of respondent to dismiss the appeal granted.
Appeal dismissed.