Brown v. Cobb

HOUSER, J.

From the affidavit presented by respondent it appears that after a motion for new trial had been denied by the court, and on January 23, 1922, appellants gave notice that on January 24th a bill of exceptions would be presented to the court for settlement. On April 8th a

nunc pro tunc

minute order shows that the matter of settlement of such bill of exceptions was ordered submitted to the court as of date January 24, 1922. Between the said date of submission and April 18, 1922, various other notices in the cause were filed, including notice of appeal, notice to clerk to prepare transcript, notice of the court’s denial of the motion for a new trial, and two notices that on two several dates, respectively, defendants would move the court for a settlement of the bill of exceptions, at each of which times the court already had the matter under submission.

[534]

The motion to dismiss the appeal is based upon the ground that no transcript has been filed in the district court of appeal and that there has been a lack of prosecution of the appeal.

By rule II of the supreme court rules (176 Pac. vii) it is provided that the transcript must be served and filed within forty days after the appeal is perfected, provided that “if a proceeding for the settlement of a bill of exceptions which may be used in support of such appeal is pending . . . the time aforesaid shall not begin to run until the settled and authenticated bill of exceptions has been filed, ...” Rule VI (176 Pac. ix) provides, among other things, that “it shall be incumbent on the party moving to dismiss to show . . . that no proceeding for a bill of exceptions is pending in the trial court.”

Certain authorities submitted by respondent

(Moultrie

v.

Tarpio,

147 Cal. 376 [81 Pac. 1112];

Estate of Johnston,

14 Cal. App. 376 [112 Pac. 191];

Harbaugh