Kelly v. Ning Yung Benevolent Ass'n

BEATTY, C. J.

Plaintiff recovered a judgment in the superior court, which was entered in July, 1902. The defendant in due time gave notice of its intention to move for a new trial upon a statement of the case to he thereafter prepared, and upon the ground, among others, of errors occurring at the trial. This notice was followed in due time by a

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proposed statement of the ease to which the plaintiff proposed amendments which were not accepted, and proper steps were thereupon taken to procure a settlement of the statement by the court. By various orders of the superior court, the settlement of the statement has been continued from time, to time, and the proceeding is still pending. It does not appear at whose solicitation these continuances were granted, but presumably they were by consent or for good cause. It does appear that as late as January 13th of the present year the plaintiff sought and obtained leave to propose additional amendments to the statement proposed by defendant.

In the mean time the defendant had, on January 8th, perfected this appeal from the judgment. On February 19th no transcript of the record having been filed here, the plaintiff gave notice of his motion to dismiss said appeal for failure to file the transcript within the time prescribed by rule II. The motion is based upon the assumption that in view of the facts above detailed the time allowed for filing the transcript commenced to run as soon as the appeal was perfected. But the rule cannot be construed to this effect. The appellant by its terms is given not merely forty days after perfecting his appeal to file the transcript, but forty days after perfecting his appeal “

and the settlement of his hill of exceptions, and the statement (if there he any).”

The rule, of course, assumes that it will sometimes happen (in fact, it generally happens) that a bill of exceptions which may be used in support of a particular appeal will remain unsettled for some time after the appeal is perfected, and its unmistakable intent is, that in such cases the time allowed for filing the transcript shall not begin to run until the bill or statement is settled or until the proceeding to obtain a settlement is abandoned or dismissed, or in some way definitely disposed of. Here the settlement of a statement is still pending, and if the statement is such that it may be used in support of this appeal, the fact that it is still unsettled is a complete answer to the motion to dismiss.