Smith v. Title Insurance & Trust Co.

Respondents on February 9, 1925, served and filed notice of motion to dismiss the appeal “upon the ground that neither the transcript on appeal nor appellant’s opening brief” were served or filed within the time prescribed by law and the rules of the court. The appeal is from a judgment entered after the court had sustained a demurrer to the third amended complaint, in an action to recover on a money demand against a decedent’s estate. As it appeared from the clerk’s certificate that the appeal should have been made to the supreme court, the same was transferred to the supreme court; whereupon the supreme court made its order retransferring the cause to this court. Thereafter the motion to dismiss was brought on for hear ing and was submitted on March 13. As the time for filing brief does not begin to run until the transcript has been filed, the only delay which we need to consider is the delay in filing the transcript.

Notice of appeal from the judgment was filed in the superior court on the twenty-seventh day of September, 1924. Therefore the time for filing transcript expired on November 6, 1924.

The motion is based upon the certificate of the county clerk and upon an…