Bell v. Staacke

SHAW, J.

The defendant Teresa Bell, as administratrix with the will annexed of the estate of Thomas Bell, deceased, moves the court to dismiss the appeal of the plaintiff from the judgment of the superior court entered therein on October 28, 1904. The motion is made on the ground that the time

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allowed by law and by the rules of this court for the filing of the transcript on appeal has expired, and hence that under the provisions of rule Y (78 Pac. viii) the appeal from the judgment must be dismissed. At the time the appeal was perfected a proceeding was pending for the settlement of a statement of the case to be used on a motion then pending in the lower court for a new trial. The time for the filing of the transcript of the record in this court, under such circumstances, is fixed by subdivision 1 of rule II (78 Pac. vii), which is as follows: “(1) 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 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 provided further, that, when a party appealing from a judgment has given notice of motion for a new trial before perfecting said appeal, the time for filing and serving the printed transcript shall not begin to run until the motion for a new trial has been decided or the proceeding dismissed for want of prosecution; and the appeal from the judgment and from an order denying a new trial of the issue may in all eases be presented upon the same transcript.” The statement to be used on the motion for a new trial was settled, anthenticated, and -filed on May 29, 1905, and the motion for a new trial was denied by an order filed with the clerk of the superior court on June 24, 1905. The date of its entry is uncertain. The purpose of this part of rule II was to give the appellant an opportunity, if he so desired, to present the appeals from the judgment and from the order denying a new trial upon the same transcript. To give effect to this purpose it is necessary to construe the words of the last proviso as meaning that the time for filing the transcript shall not begin to run until the order denying or dismissing the motion for a new trial has not only been made, but has also been either entered on the minutes of the superior court or filed with the clerk thereof, so as to give an immediate right to appeal therefrom, under section 939 of the Code of Civil Procedure and the decisions of this court construing the same in