Bryan v. Tevis

Appeal—Transcript on Appeal—Time for Filing—'Construction op Bules.—Under rules II and V of the supreme court, the forty-day period within which the appellant can file his transcript on appeal does not begin to run “until the motion for a new trial has been decided, or the proceeding therefor dismissed”; nor does such time begin t'o run during the pendency of any proceeding “for the settlement of the bill of exceptions or statement which may be used in support of such appeal.”

New Trial—Lack of Diligence—Order Dismissing Proceeding—Effect of.—An order dismissing a proceeding for a new trial on the ground that the moving party has not prosecuted the same with due diligence is in effect' one denying the motion for a new trial.

Id.—Termination of Proceeding—Commencement of Time for Filing Transcript.—Where an order was made, on motion, dismissing a proceeding for a new trial, on the ground of lack of diligence in prosecuting the same, which order became final by failure to appeal from it, the party, instead of appealing, having moved to vacate the order of dismissal on the ground that his delay in prosecuting the motion for a new trial was due to mistake and excusable neglect, which motion was granted, but thereafter the court made an order etc parte purporting to vacate the last-named order and setting the motion t'o vacate the order dismissing the proceeding for a new trial for further hearing, and, after hearing, made an order finally-denying the motion to vacate the order dismissing the proceeding for a new trial,—whatever may have been the effect of the orders subsequent to t'he first, the last order denied the motion for a new trial and definitely ended the proceeding therefor; and the time for filing the transcript on appeal, so far as affected by the pendency of the proceeding for a new trial is concerned, commenced to run at least as early as the date of the last order.

Id.—Statement on Motion for New‘Trial—Refusal of Settlement— Termination of ¡Proceeding—Appeal from Judgment.—An order signed by the trial judge and entered on the minutes of the court denying an application for the settlement of a statement on motion for a new trial, to be used on appeal from the judgment, is in effect one dismissing and terminating the proceeding in the lower court for the settlement of the statement, and thenceforth, within the meaning of the rules of the supreme court, no proceeding for the settlement of the statement was pending, and the time within which the transcript might be filed commenced to run.

Appeal—Time for Filing Transcript—When not Extended.—If it be conceded that the order, in such a case, finally denying the motion to vacate the order dismissing the proceedings for a new trial, which finally terminated the latter proceeding, and the order denying the application for settlement of the statement on motion for a new trial, are appealable, the pendency of appeals from them does not ipso facto extend the time for filing the transcript on appeal from the judgment.

Id.—Dismissal of Proceeding by Lower Court—Pendency of Appeal from Dismissal—Claim of Abuse of Discretion.—If, on a motion to dismiss an appeal from a judgment in such a case for failure to file a transcript, it is clearly made to appear to the supreme court that there has been an arbitrary disregard of appellant’s rights and a gross abuse of discretion in determining that the appellant had not proceeded with diligence, and in dismissing his proceeding for a record or bill, and there is substantial merit in an appeal, which is being prosecuted diligently, involving the question of the right of the appellant to a record, the supreme court might be warranted in refusing to dismiss the appeal from the judgment, until the question of the right to a record is finally determined, but in the absence of such showing, and where the record on the appeal from the order dismissing the proceeding for the settlement of the statement shows no merit, the appeal from the judgment will be dismissed.