Harrington v. Phipps

Opinion by Mr. Chief Justice Moore. This is a motion to dismiss an appeal. At the trial this action was dismissed, and the plaintiff, in order to review the judgment, caused to be served and filed a notice of appeal and an undertaking. Exceptions were taken to the sufficiency of the surety in the undertaking, who, pursuant to notice, appeared at the time appointed, January 25, 1910, and justified, whereupon the appeal became perfected. Section 549, subd. 4, B. & C. Comp. Within 30 days from that time the appellant was required to file with the clerk of this court a transcript or an abstract on appeal, or to secure an order enlarging the time to file the same. Section 553, subd. 2, B. & C. Comp. The trial court, on February 26, 1910, made an order allowing the plaintiff 30 days therefrom to file the transcript, and it was filed in this court February 28, 1910. The order, therefore, was made after the expiration of the 30 days specified, and no jurisdiction of the cause was conferred by the filing of the transcript. The appeal must be dismissed, and it is so ordered. Dismissed.