Hewitt v. San Jose Pacific Co.

THE COURT. Respondents move to dismiss the appeal from the judgment in the above-entitled action on the ground that the printed transcript was not filed within the prescribed time. The affidavit on behalf of the moving parties and the certificate of the county clerk of Alameda County which accompanied the motion show that a bill of exceptions was prepared and settled, and the time for printing and filing of the transcript of the record on appeal in this court ex-pired six months ago.

Appellant seeks to avoid a dismissal of the appeal on the ground that the bill of exceptions was improperly settled and allowed, and that thereafter appellant sought an order qf the trial court to resettle, revise and amend the bill; that said application was denied. Appellant further contends [373]that from this judgment of denial an appeal is now pending in this court. Investigation of the records of this court fail to show such appeal; but, on petition for rehearing, the plaintiff has filed herein a certified copy of “Notice of Appeal from Special Order Made after Pinal Judgment”, on file in the office of the clerk of the Superior Court in and for the County of Alameda. Notwithstanding the filing of such notice of appeal in the court below, we are of the view that the effort of appellant to procure from the court below a special order vacating the settlement and engrossment of the bill of exceptions in said action, and an order re-settling and re-engrossing said bill of exceptions, is but another step in the delay incident to the perfecting of the appeal from the judgment herein. At the time of the argument on this motion, appellant requested a delay of five days to permit the appellant to petition for a writ of mandate to compel the trial court to take certain steps toward perfecting an appeal from the order denying revision of the bill of exceptions. While no extension of time was granted, the period of time requested has more than elapsed.

The motion to dismiss the appeal from the judgment is granted and the appeal is dismissed.

Rehearing denied.