Somers

This is a motion to dismiss an appeal from the judgment in the action above entitled, upon the ground that no transcript has been filed here, notwithstanding more than forty days have elapsed since the appeal was perfected. But it will be seen by reference to rule 2 of this court that the time within which a transcript must be filed does not in all cases commence to run from the date of perfecting the appeal. If there be a bill of exceptions or statement which may be used in support of the appeal, the forty days allowed by the rule for filing the transcript does not commence to run until such bill or statement is settled.

In this case it appears that the appellant is moving for a new trial; that he prepared and served a statement to be used on that motion within due time, but that it has never been settled, owing to the refusal of the trial judge to act upon it. He is still endeavoring to procure the settlement of this statement, and makes affidavit that it will constitute a material part of the record on his appeal.

That it may be used in support of his appeal from the judgment is clear. (Code Civ. Proc , sec. 950.)

Such being the case, the motion to dismiss must be denied,…