Solomon

Appeal from judgment foreclosing mechanic's lien. Motion to dismiss appeal for failure to file transcript in time.

Judgment was rendered and entered November 25, 1889. Appeal perfected December 7, 1889. The transcript was due in this court January 16,1890, there being no bill of exceptions or statement settled or filed. Notice of this motion given January 20, 1890, showing that the same would be made on certificate of the clerk of the court below, which was also filed, dated January 17th, showing that no bill of exceptions or statement had been settled or filed in the cause, and that he had not been requested to certify any transcript in the cause. Appellant, by affidavit, attempts to excuse the delay in filing transcript by showing that the bill of exceptions had not been settled, relying upon rule 3 of this court, which requires that the transcript shall be filed within forty days after the appeal is perfected, and the bill of exceptions and statement (if there he any) are settled. But that does not help out the case; for the same affidavits show that no attempt was made to settle bill of exceptions until January 10, 1890, more than forty days after the entry of judgment, and…