Howard v. Bussell Land Co.

Morris, J. — Upon the hearing of this appeal, a motion was made to strike the statement of facts upon the ground that the same was not filed nor served within thirty days from the entry of the judgment, and no extension of time had been granted. Judgment was entered October 21, 1912, and the proposed statement of facts was filed and served November 21, 1912. No extension having been granted, this was too late. Rem. & Bal. Code, § 393 (P. C. 81 § 693), provides that a proposed statement of facts must be filed and served before or within thirty days after the time begins to run within which an appeal can be taken, unless such time be enlarged by an order of the court. It will be noted that this proposed statement was served and filed on the thirty-first day. If we ex [332] tend the time fixed by the statute one day, we could extend it a hundred days and thus work a repeal of the statute. No question is raised in this case outside of the statement of facts. To strike, therefore, works a dismissal of the appeal. The appeal is dismissed and the judgment of the lower court affirmed. Main, Ellis, and Fullerton, JJ., concur.