Rath v. Vaughan

CONREY, P. J.

On motion to dismiss appeal in an unlawful detainer action, on the ground that the transcript has not been 'filed within the time allowed by law. Notice of this motion was served and filed on September 10, 1919. Rule II prescribes, as the general rule, that the printed transcript shall be filed within forty days after the appeal was perfected. But “if a proceeding for settlement of a bill of exceptions ■ which may be used in support of such appeal is pending or may still be instituted, the time aforesaid shall not begin to run until the settled and authenticated bill of exceptions has been filed, or the time in which a proceeding for such a bill of exceptions may be instituted has' expired, or such proceeding if instituted has been dismissed by the trial court.”

By the clerk’s certificate it appears that notice of entry of judgment was served on defendant on the thirty-first day of March, 1919. Notice of intention to move for a new trial was filed on April 7th, and notice of appeal from the judgment was filed on April 10th. The motion for new trial was never brought on -for hearing. Therefore, under the limitations established by the term's of section 660 of the Code of Civil Procedure, the power of the court to grant a new trial of the cas,e expired on the thirtieth day of June.

'Under the provisions of section 650 of the Code of Civil : Procedure, the time allowed to a party to prepare and serve upon the adverse party a proposed bill of exceptions' is, in.a ease.tried without a jury, “within ten days . . . after receiving notice of the entry of judgment.” “Or if proceedings on motion for a new trial be pending, within ten days after notice of decision denying said motion, or other determination thereof, or such further time as the court, in which the action is pending, or a judge thereof, may allow.” •

■ From and after June 30, 1919, the proceeding on motion for new trial was no longer ' pending. The time within which defendant was entitled to serve and file his proposed bill of exceptions would, therefore, in the ordinary course of

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procedure, expire on the tenth day of July, unless further time had been granted, and the forty days’ time for filing the transcript would then begin to run. The transcript, then, was overdue when plaintiff gave notice of this motion to dismiss the appeal.