White v. White

Harrison, J. Motion to dismiss the appeal for failure to file the transcript within the time prescribed by rule II of this court.

The judgment from which the appeal is taken was entered in the superior court February 9, 1895, and the appeal therefrom was perfected April 13, 1895. The plaintiff gave notice of his intention to move for a new trial on the 19th of February, 1895, and on March 29th served his proposed bill of exceptions and statement of the case on said motion, to which the defendant proposed amendments. December 6th the proposed bill and amendments came on for settlement before the judge, and he, deeming that the proposed bill did not correctly set forth the proceedings had in the case, outlined the nature of the bill which he would settle, and directed the plaintiff within sixty days from that date to prepare and serve upon the defendant a bill of exceptions in accordance therewith, and gave to the defendant thirty days thereafter within which to propose amendments thereto, after which the usual and statutory proceedings in reference to settlement were to be had. Under this order the plaintiff served his proposed bill of exceptions upon the defendant January 27, 1896. The defendant proposed no amendments thereto, but on February 17th moved the judge to disallow the same, and, after argument thereon in behalf of the respective parties, this motion was granted and an order made by the judge disallowing the said bill of exceptions. Thereafter, March 2d, the appellant presented the same ex [579]parte to the judge, and requested him to settle and certify the bill, or to fix a day for such settlement, and upon such application the judge refused to settle or certify the same or any bill of exceptions. No statement or bill of exceptions having been filed, the motion for a new trial was denied February 17th, and no appeal has been taken from that order. After the refusal of the judge to settle the bill of exceptions, the appellant took no further steps or action toward obtaining its settlement, or for the filing of a transcript in this court, and on April 7th the respondent gave notice to the appellant of the present motion to dismiss the appeal.

Rule II of this court requires the appellant to file a transcript of the record within forty days after the appeal is perfected, and the bill of exceptions and the statement (if there be any) are settled; and by rule V it is provided that if the transcript be not filed within the time prescribed, the appeal may, on motion of the respondent and notice thereof to the appellant, be dismissed. Upon such motion the respondent is only required to show in the first instance that more than forty days have expired since the perfecting of the appeal, and, in the absence of any further showing on the part of the appellant, the appeal will be dismissed.