Emeric

Motion to dismiss the appeal. An appeal from certain portions of the final decree in partition, entered herein, was taken on behalf of Leota K. T. Gutierrez, one of the defendants, March 23, 1894, and certain of the respondents have moved to dismiss the appeal under rule V of this court, upon the ground that the transcript on appeal has not been filed. The appellant seeks to avoid the effect of the rule by showing that she has served upon the attorney for the plaintiff the draft of a bill of exceptions containing the errors of the trial court, and matters relating thereto, which she desires to have considered upon the appeal, and that the trial judge has not yet settled this bill of exceptions. The draft of this bill of exceptions was not served upon the attorneys for the parties moving herein, and the affidavits on their behalf that no statement or bill of exceptions has been proposed to or served upon them are not controverted by the appellant. As the record to be considered upon the appeal as to these respondents consists of the judgment-roll alone, without any bill of exceptions, it was incumbent upon the appellant to file the transcript within the time prescribed by rule II.…