Curtin

This is a motion to dismiss an appeal from a judgment. The ground of the motion is that the transcript was not filed within forty days after the appeal from the judgment was perfected.

The judgment in this case was entered May 22, 1907, and, for the purpose of keeping alive an attachment, plaintiff took and perfected an appeal therefrom within five days, to wit, on May 27, 1907. On May 28, 1907, plaintiff served and filed his notice of motion for a new trial, to be heard on the minutes of the court. This motion was heard October 4, 1907, and was denied and entered October 14, 1907. Thereafter, and in due time, on December 17, 1907, the plaintiff served on defendant his original statement on motion for a new trial, and the defendant served his amendments thereto December 27, 1907. On the sixth day of January, 1908, the statement and amendments were delivered to the clerk of the court for the judge for settlement, and the settlement thereof is now pending and set for hearing. The affidavits on file do not show that any stipulation had been entered into or order made extending the time to serve and file the transcript on appeal.

The respondent contends that the transcript on appeal…