Dernham v. Bagley

ANGELLOTTI, J.

This is a motion to dismiss an appeal' taken by plaintiff from so much of the judgment given in the above-entitled cause as was in favor of the defendant. The ground of the motion is that plaintiff has not served and filed the printed-transcript of the record on appeal within the time prescribed by rule II of this court. (144 Cal. xl, [78 Pac. vii].)

[217]

Several interesting questions have been ably argued by respective counsel, but we find it necessary to consider only one matter in disposing of the motion.

The appeal was duly perfected on April 2, 1906. At the time of the service and filing of the notice of this motion, September 11, 1906, and at the time of the hearing, October 1, 1906, no transcript of the record on appeal had been served or filed. There had. been, in due time, a service and filing of a purported notice of intention to move for a new trial. It is claimed by defendant that this notice was so defective that it was ineffectual for any purpose. There had also been certain stipulations extending the time of plaintiff to serve a proposed bill of exceptions on motion for a new trial, and various orders of the court purporting to extend the time of plaintiff within which to serve his proposed bill of exceptions on appeal from the judgment and on motion for a new trial. Within the life of the last order, on September 1, 1906, plaintiff served on defendant his proposed bill of exceptions, on appeal from the judgment, and on motion for new trial. Defendant refused to admit service thereof, on the ground that so far as it was a bill of exceptions on appeal from the judgment, it was not served in time, and so far as it was a bill of exceptions on motion for a new trial, it could not be considered for the reason that no notice of plaintiff’s intention to move for a new trial had been served or filed within the time allowed by law. On September 11, 1906, defendant obtained an order of the judge of the lower court, extending by thirty days from that date, her time within which to propose amendments to said bill, and this time, it will be observed, had not expired at the date of the hearing of this motion. At that time, plaintiff’s proceeding for the settlement of a bill of exceptions to be used on the appeal from the judgment, as well as upon the motion for a new trial, was pending undisposed of in the trial court, and no disposition had been made therein of his attempted proceeding to obtain a new trial.