Vinson

This is a motion by the plaintiffs to dismiss the defendant’s appeal from the judgment of the court below. The ground of the motion is that the transcript was not filed within forty days after the appeal was perfected. Rule 2 of this court ( 64 Pac. vii ) provides that “the appellant in a civil action shall, within forty days after the appeal is perfected and the bill of exceptions and the statement (if there be any) are settled, serve and file the printed transcript of the record.” The judgment was rendered in the court below on May 15, 1902, and the appeal was perfected on November, 17, 1902. It is conceded that, if the time for filing the transcript began to run on November 17th, the appeal must be dismissed for failure to file the same within time. But the appellant claims that the time had been extended by the pendency of proceedings to settle a statement on motion for a new trial, and this presents the sole question in the case. The notice of the motion to dismiss was served and filed on January 10, 1903. It is claimed that a statement on motion for a new trial was settled on *144 December 16, 1902, and that within forty days after that date, but after the filing of the…