Wilson

Motion to dismiss and motion to supplement the record. Wayne T. Wilson, the defendant below, hereafter called Wilson, in whose favor the judgment was given, thereafter .died; appellee was substituted as the party appellee by order of this court. Appellee has moved to dismiss this appeal on the ground that judgment had been entered by the district court on May 10, 1939, a motion for a new trial denied on November 4, 1939, and that not until June 6, 1940, was there filed a notice of appeal.

Accompanying the notice of motion to dismiss is a transcript of the record certified by the clerk of the district court. This transcript contains a notice of appeal of June 6, 1940. It is agreed that the record of the district court contains an earlier notice of appeal filed on December 19, 1939, appealing from the judgment of May 10, 1939, and coming within thirty days of the denial of the motion for a new trial. The transcript contains a stipulation of the parties designating what shall constitute the record on appeal. In this stipulation there is no agreement for omitting any notice of appeal. Rule 75(g) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides…