Shepard

This is a motion by plaintiff to dismiss an appeal from the judgment, on the ground that appellant has not filed in this court a transcript on appeal within the time allowed by law. It is conceded that the forty days within which such transcript must be filed did not begin to run until the motion for a new trial made by defendant was decided by the. lower court (rule 2 of this court [ 78 Pac. vii ]), and the question her_e is as to when the motion was decided, within the meaning of our rule. The notice of motion to dismiss was served on November 24, 1905, and filed November 25, 1905, at which times no transcript on appeal had been served or filed. The action was one to quiet title to certain land. On June 22, 1905, in the matter of defendant’s motion for a new trial, which had previously been argued and submitted on a bill of exceptions, the trial court made the following order, viz.: “It is ordered that defendant’s motion for a new trial be denied, but upon the condition, however, that plaintiff consent that the findings, judgment, and decree heretofore herein made be amended and modified so as to make the southerly side of the disputed fence the northerly boundary of the Shepard…