Moultrie v. Tarpio

ANGELLOTTI, J.

This is a motion made July 3, 1905, to dismiss an appeal from an order of the superior court of Santa Cruz County, made and entered on March 13, 1903, denying a motion of appellant to vacate an order' theretofore made granting a writ of assistance. The appeal was perfected on March 16, 1903. The motion to dismiss the appeal was based on the ground that no transcript on appeal has been served or filed, although no stipulation or order had been made extending the time to serve and file the same, and on the further ground that appellant has failed and neglected to prosecute his appeal with due or any diligence.

Although duly served with notice of this motion, appellant did not appear on the. hearing thereof, and has in no way opposed the granting of the same.

[377]

According to the undisputed showing made by respondent, appellant served his proposed bill- o£.exceptions on plaintiff on August 10, 1903, and on October 24, 1903, respondent duly served on appellant her proposed amendments to said bill of exceptions. No stipulation or order has ever been made extending appellant’s time within which to proceed with the settlement of said bill. Appellant has never presented said proposed bill or amendments to the judge who made the order appealed from, or to the clerk of the court for said judge, and has taken no step whatever looking to the settlement of said bill. In consequence of this non-action on his part, although more than a year and a half has elapsed since the service of the proposed amendments, no bill of exceptions has been settled.

It is provided by rule II of this court that the appellant in a civil action shall serve and file his printed transcript on appeal within forty days after the appeal is perfected, “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.”

If it must be held that, under the circumstances above stated, a proceeding for the settlement of a bill of exceptions to be used on the appeal is still pending, it must follow that the time for filing the transcript has not, under the rule, commenced to run.