Smith v. Solomon

Fox, J. Appeal from judgment foreclosing mechanic's lien. Motion to dismiss appeal for failure to file transcript in time.

Judgment was rendered and entered November 25, 1889. Appeal perfected December 7, 1889. The transcript was due in this court January 16,1890, there being no bill of exceptions or statement settled or filed. Notice of this motion given January 20, 1890, showing that the same would be made on certificate of the clerk of the court below, which was also filed, dated January 17th, showing that no bill of exceptions or statement had been settled or filed in the cause, and that he had not been requested to certify any transcript in the cause. Appellant, by affidavit, attempts to excuse the delay in filing transcript by showing that the bill of exceptions had not been settled, relying upon rule 3 of this court, which requires that the transcript shall be filed within forty days after the appeal is perfected, and the bill of exceptions and statement (if there he any) are settled. But that does not help out the case; for the same affidavits show that no attempt was made to settle bill of exceptions until January 10, 1890, more than forty days after the entry of judgment, and then the only attempt was to speak to the counsel of respondent about it. No proposed bill of exceptions has ever been served or offered to the judge for settlement. No extension of the time [539]in which to settle the same had ever been given by counsel, and the time allowed by law, and all the time which the court had power to give in which to prepare and serve upon opposite counsel a proposed bill of exceptions, had expired before said opposite counsel had been even spoken to upon the subject. (See Code Civ. Proc., secs. 650, 1054.) It was therefore too late to settle any bill of exceptions in the case, and no satisfactory excuse is given for failure to file the transcript in time.

It is therefore ordered that the appeal be dismissed, and the court below is directed, under section 1195 of the Code of Civil Procedure, to allow, as additional costs in the case, a reasonable attorney’s fee for the services of the attorney of respondent in this court.

Paterson, J., and Beatty, C. J., concurred.