Howse

This is a motion to dismiss an appeal taken by defendant from a judgment against it. The notice of motion was served and filed December 18, 1908, and states that the motion will be made on the ground that no transcript on appeal has been filed in this court, though more than five months have elapsed since the perfecting of the appeal.

Rule II of this court [ 78 Pac. vii ] requires that such transcript be filed within forty days after the perfecting of the appeal, unless there is pending a proceeding for the settlement of a bill of exceptions, or a statement which may be used in support of such appeal.

Respondent served with his notice of this motion an affidavit of his attorney, showing that appellant on June 15, 1908, served on him its proposed bill of exceptions, to which respondent proposed and served on appellant within five days thereafter amendments thereto, and “that more than six months have elapsed since said proposed amendments were served, as above upon defendant’s attorney, and defendant’s attorney has not during all said period had said bill of exceptions, or any bill of exceptions, settled or allowed, or filed the same with the court or with the clerk of the court…