Chapman

Motion to dismiss an appeal from a judgment and order denying a new trial, on the ground that the transcript was not filed in time.

The judgment, in favor of defendant, was rendered September 27, 1889. The order overruling plaintiff’s motion for a new trial was made August 28, 1890. Notice of appeal from the judgment and order was filed and served September 25th, and undertaking on appeal filed September 27th.

The time for filing the printed transcript prescribed by rule 2 of this court expired November 5, 1890.

On November 15th, no transcript having been filed, respondent served notice of his motion to dismiss. On the same day, but subsequent to the service of said notice, appellant filed a written transcript duly certified by the county clerk, which was thereafter printed and served.

The fact that the transcript was filed the same day notice to dismiss was served, but at a later hour, does not bring the appellant within the protection of rule 2 of this court (Hoyt v. S. F. & N. P. R. R. Co., 87 Cal. 610 ), and the motion to dismiss must prevail, unless the appellant has by his affidavit shown a sufficient excuse for his delay to call for some relaxation of the rule providing…