Brough v. Mighell

Anderson, J.: This is an appeal from an order of the third district court granting a new trial. The order was made and entered on the eighth day of July, 1889. On the sixteenth day of July, 1889, the plaintiff was granted, by consent of parties, “thirty days’ additional time within which to file and serve a bill of exceptions and statement on appeal, and notice of appeal; and proceedings in the case are in the meantime stayed.” On the fifteenth day of August following, on motion of plaintiff and by consent of parties, the court granted plaintiff fifteen days’ additional time; and on the 28th day of August, on motion of plaintiff, he he was granted another fifteen days’ additional time. On the fourteenth day of September, 1889, the record recites that, “on motion of M. M. Kaighn, attorney for plaintiff, and good cause being shown, it is ordered that said plaintiff be, and he is hereby, allowed an extension, and thirty days’ additional time within which to serve notice of an appeal and statement on appeal and bill of exceptions herein. On the fourth day of October, 1889, the plaintiff 318 perfected bis appeal by filing in the elerk’s office a notice of appeal, an undertaking, statement, etc. Tbe defendant now moves tbis court to dismiss tbis appeal becatise not taken and perfected witbin tbe time fixed by statute. Tbe statute provides that an appeal, from tbe district court to tbe supreme court, from an order granting or refusing a new trial, may be taken witbin sixty days after tbe order is made and entered in tbe minutes of tbe court, or filed witb tbe clerk. Oomp. Laws 1888, Sec. 3635, Subd. 3. In tbis case tbe appeal was not taken until eighty-eigbt days after tbe order appealed from was made and entered. We tbink tbe order of tbe district court granting an extension of time witbin wbicb plaintiff might perfect bis appeal beyond tbe time allowed by tbe statute was unauthorized. Tbe motion to dismiss tbe appeal is-sustained, and tbe appeal dismissed. Blackburn, J., and Henderson, J.,’ concurred.