Curtin v. Ingle
Before: Kerrigan
Synopsis
Appeal from Judgment—Dismissal—Failure to File Transcript— Construction of Exile—Unsettled Statement—Excuse for Delay.—When the appeal from the judgment was first taken to keep alive an attachment, and one day thereafter appellant moved for a new trial on the minutes of the court, which was denied nearly five months after the appeal, and more than forty days elapsed after such denial without a transcript, yet a statement and amendments were unsettled at the time of a motion to dismiss the appeal for failure to file the transcript in time—held, that neither of the provisos in rule II cover the case; but, as under that rule, only one transcript is required for both appeals, and the facts of the ease excuse the delay, and would have entitled appellant to an order extending the time to serve and file the transcript, the court will not dismiss the appeal under that rule, which was not primarily designed to deal with such a case.
Id.—Delay in Settlement of Statement—Question for Trial Court. The question whether there has been such delay and laches in the settlement of a statement on motion for-a new trial, to be used on appeal, as would warrant the trial court in dismissing the same, is a question primarily for the trial court.
Id.—Motion to Dismiss Appeal—Presumption Against Inexcusable Neglect in Settlement.—When no motion has been made in the trial court to dismiss the proceeding for the settlement of the statement, and it is still pending and not abandoned, the appellate court, upon a motion therein to dismiss the appeal, is bound to assume that the appellant has not been guilty of any inexcusable neglect in that proceeding.
KERRIGAN, J.
This is a motion to dismiss an appeal from a judgment. The ground of the motion is that the transcript was not filed within forty days after the appeal from the judgment was perfected.
The judgment in this case was entered May 22, 1907, and, for the purpose of keeping alive an attachment, plaintiff took and perfected an appeal therefrom within five days, to wit, on May 27, 1907. On May 28, 1907, plaintiff served and filed his notice of motion for a new trial, to be heard on the minutes of the court. This motion was heard October 4, 1907, and was denied and entered October 14, 1907. Thereafter, and in due time, on December 17, 1907, the plaintiff served on defendant his original statement on motion for a new trial, and the defendant served his amendments thereto December 27, 1907. On the sixth day of January, 1908, the statement and amendments were delivered to the clerk of the court for the judge for settlement, and the settlement thereof is now pending and set for hearing. The affidavits on file do not show that any stipulation had been entered into or order made extending the time to serve and file the transcript on appeal.
The respondent contends that the transcript on appeal from the judgment should, under rule II of this court, have been filed forty days after the appeal was perfected. This, of course, is true unless the facts bring the case within either of the two provisos of the rule extending the time, or unless good cause is shown for the delay.
. Rule II (144 Cal. xl, [78 Pac. vii]) reads as follows: “The appellant in a civil action shall within forty days after the appeal is perfected serve and file the printed transcript of the record, duly certified to be correct by the attorneys of the
[243]
respective parties, or by the clerk of the court from which the appeal is taken;
provided,
that when there is a proceeding pending for the settlement of a bill of exceptions or a statement which may be used in support of such appeal, the time for filing and serving the transcript shall not begin to run until the settled and authenticated statement or bill of exceptions has been filed; and
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