Smith v. Trefry — 71 Cal. 404

Majority

p. 404

[No. 11876.

In Bank.

December 15, 1886.]

B. SMITH, Respondent, v. S. K. TREFRY, Appellant.

Headnote

Appeal prom Judgment—Dismissal — Failure to File Transcript — Pendency op Motion por New Trial. — An appeal from a judgment will be dismissed upon the failure of the appellant to file or prepare the transcript within the time prescribed therefor, notwithstanding a motion by the appellant for a new trial, together with the settlement of a bill of exceptions to be used thereon, is pending in the lower court.

Appeal from a judgment of the Superior Court of Sacramento County.

The facts are stated in the opinion of the -court

John T. Carey, and Alexander & Brown, for Appellant.

C. T. Jones, for Respondent.

Motion to dismiss appeal.

Judgment was rendered in favor of plaintiff November 1, 1885. Notice of appeal from the judgment was filed, and served June 18, 1886. No transcript on appeal had been filed, and we have the certificate of the clerk of the court below that the appellant has not requested the clerk to certify to any transcript. Under such circumstances, the motion must be granted.

If, as is stated in a subsequent certificate of the clerk, a motion for new trial is pending in the court below, together with a settlement of a bill of exceptions to be used on such motion, the effect of such proceedings will be considered if an appeal should hereafter be taken from the ruling, when made on the motion for new trial. Until then we must regard the appeal, as the appellant has characterized it, an appeal from the judgment; and no transcript having been filed or prepared within the time prescribed therefor, the appeal is dismissed, but without prejudice.

Sharpstein, J., McKee, J., Morrison, C. J., and Thornton, J., concurred.