Vinson v. Los Angeles Pacific Railroad

HENSHAW, J.—

This is a motion by the plaintiffs to dismiss the defendant’s appeal from the judgment of the trial court. In Department the motion was granted, and the appeal was dismissed. Upon petition a reconsideration by the court in Bank of the question involved was ordered. The facts are accurately stated in the Department opinion, and are as follows: The ground of the motion is, that the transcript was not filed within forty days after the appeal was perfected. Rule II of this court provides that: 1 ‘ The appellant in a civil

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action shall, within forty days after the appeal is perfected and the bill of exceptions and the statement (if there be any) are settled, serve and file the printed transcript of the record. ’ ’ The judgment was rendered in the court below on May 15, 1902, and the appeal was perfected on November 17, 1902. It is conceded that if the time for filing the transcript began to run on November 17th, the appeal must be dismissed for failure to file the same within time. But the appellant claims that the time had been extended by the pendency of proceedings to settle a statement on motion for a new trial, and this presents the sole question in the case. The notice of the motion to dismiss was served and filed on January 10, 1903. It is claimed that a statement on motion for a new trial was settled on December 16, 1902, and that within forty days after that date, but after the filing of the notice of motion to dismiss, the transcript on appeal was filed. If the statement so settled was settled under authority of law and can be used on the appeal, the motion must be denied.

The motion for new trial was made on the minutes of the court, and was denied in the court below on'1 July 21, 1902. No appeal was ever taken from the order. The respondents contend that after the lapse of sixty days from the entry of the order, without the taking of an appeal, the right to have a statement settled upon the motion ceased, that the subsequent settlement of the so-called statement was a mere idle and useless ceremony, and that the statement so settled is without force or effect. The appellant relies on section 950 of the Code of Civil Procedure, which is as follows: “On an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment-roll, and of any bill of exceptions or statement in the case, upon which the appellant relies. Any statement used on motion for a new trial, or settled after decision of such motion, when the motion is made upon the minutes of the court, as provided in section 661, or any bill of exceptions settled, as provided in sections 649 or 650, or used on motion for a new trial, may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing the new trial.” The contention of the appellant is, that the effect of this section is to give the party who intends to appeal