Desmond v. Otto Faus

Thornton, J. Motion to dismiss appeal for failure to file transcript in time.

[135]By stipulation, the time to file the transcript had been extended to and including the 10th of October, 1889.

By a writing signed by four .justices of this court on the 8th of October, 1889, the time to file the transcript was further extended twenty days from the 10th of October, 1889. This paper was not filed, but a copy of it was served on the attorney of defendants on the said 10th of October.

The order was filed after notice of motion to dismiss was served, and before hearing of the motion.

• It is now objected that the writing was of no force,— was not an order until filed, — and therefore the time was not extended.

We are inclined to think that the paper signed by the four justices was an order of court before filing. It was a writing signed by the justices, and purported to be an order. (See Code Civ. Proc., sec. 1003.)

We are satisfied that the failure to file the writing was an inadvertence, and that the appeal should not be dismissed. The respondents knew that the writing existed, by the service of a copy on their counsel.

We do not think the ends of justice would be promoted by dismissing this appeal (Grant v. De Lamori, 71 Cal. 329), and'the motion must be denied.

So ordered.

McFarland, J., Sharpstein, J., Beatty, C. J., Fox, J., and Paterson, J., concurred.