Devine

pro tem.—The respondent moves the court to dismiss the appeal taken herein, upon the ground that appellants did not cause the transcript on appeal to be filed with the clerk of this court within the forty days allowed by rule for that purpose.

Judgment was rendered against the appellants on April 14, 1919, and the appellants in due course filed their notice of appeal, caused the transcript to be prepared and paid all lawful fees therefor. The court below properly settled and certified the transcript. The time for filing it in this court expired on the tenth day of September. It was not filed until the eighteenth day of October.

It is shown that appellant, Devine, who appears to have managed the matter on behalf of himself and his coappellant, is quite aged and in poor health; that he was absent from Sacramento City, the place of residence of himself and his attorneys, by reason of his ill health, during the greater portion of the summer. A few days after the settlement of the transcript he held a conference with his attorneys concerning the appeal, and they erroneously understood him to say that the appellants intended to abandon the appeal.

[1] The transcript was not on file…