Wixon

In this case the respondent interposed a motion to dismiss the appeal on the ground that the transcript was not filed within the time prescribed by the rules of the supreme court. The transcript was filed on the forty-fourth day after the bill of exceptions had been settled and filed in the office of the county clerk of Santa Clara County. On the forty-second day after the settlement and filing of the bill of exceptions, respondent served his motion to dismiss the appeal accompanied by affidavits sufficient in form and substance. On the date of the hearing, in the absence of any affirmative showing by the appellants, the appeal should have been dismissed, but on that date appellant asked and was granted time to file affidavits in support of his application then made to be relieved from default. Several affidavits were filed by the respective parties and the matter was set for hearing and heard on the nineteenth day of March, 1928.

The printer, who had in charge the printing of the transcript in this case, stated in his affidavit as follows: “At said time” (referring to the dates of the settlement and the ■filing of the bill of exceptions and the forty-day period thereafter) “the…