Baker

The only grounds presented which require discussion in ruling upon this motion to dismiss the appeal of plaintiff from the judgment are, that the appellant has failed to file any transcript within the time allowed by law, and has failed for fifteen months to prosecute the appeal.

The judgment was entered on October 18, 1912, and notice of appeal was filed in the office of the clerk of the superior court on December 16, 1912. At all times from November 2, 1912, until March 5, 1914, there was pending a motion for a new trial of the action, and incidental thereto, the settlement of a proposed bill of exceptions. On March 5, 1914, the court below disallowed the bill of exceptions and denied the motion for a new trial.

Bule II of this court, 160 Cal. xlii , [ 119 Pac. ix ], after stating the general rule requiring that a transcript be served and filed by the appellant in a civil action within forty days after the appeal is perfected, says: “If a proceeding is pending for the settlement of a bill of exceptions or statement which may be used in support of such appeal, the time aforesaid shall not begin to run until the settled and authenticated statement or a bill of exceptions has…