Grant v. De Lamori — 71 Cal. 329

Majority

p. 329

[No. 11712.

In Bank.

November 29, 1886.]

JOHN GRANT, Respondent, v. FRANCISCA URQUIDEZ DE LAMORI, Administratrix, etc., of Louis Lamori, Deceased, et al. UMPARA LAMORI DE PLUMMER et al., Appellants.

Headnote

Appeal—Failure to File Transcript—Dismissal—Order Extending Time for Filing. — A motion was made to dismiss the appeal on the ground that no transcript had been filed within forty days after the appeal was taken, and no order extending the time for filing had been made of record. Before the expiration of the time, the appellant obtained the signatures of four of the justices to an order for an extension, but inadvertently neglected to file it until two days after the notice of motion to dismiss was served. Held, that the appeal should not be dismissed.

Appeal from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new trial.

Motion to dismiss appeal. The facts are stated in the opinion of the court.

H. Allen, for Appellants.

Howard & Scott, for Respondent.

Motion to dismiss appeal. The forty days within which to file the transcript expired on the 17th of June, 1886. On the 19th of June, no transcript having been filed, and no order of record extending the time, the respondents moved to dismiss the appeal. Before the 17th of June, the appellant obtained the signatures of four of the justices to an order extending the time, but this order was not filed until after the notice of motion to dismiss was granted; it was filed, however, on June 21st. We are satisfied that the omission of the appellant to file the order of extension with the clerk was through inadvertence; and under such circumstances we do not think the ends of justice would be subserved by enforcing a strict rule and dismissing his appeal.

The motion is denied.