Opinion
Docket No. S.F. 13114.
November 10, 1928.
MOTION to dismiss an appeal from an order of the Superior Court of San Mateo County granting a new trial. John L. Hudner, Judge Presiding. Appeal dismissed.
The facts are stated in the opinion of the court.
John H. Crabbe for Appellants.
Sullivan Sullivan and Theo. J. Roche for Respondent.
THE COURT.
[1] There is presented herein a motion by the plaintiff to dismiss an appeal from an order granting a new trial. The motion is made under Rule V of this court which provides, in part, for the dismissal of an appeal if the transcript to be used in support thereof be not filed within time. Defendants' inability to procure a transcript is due to the trial court's refusal on May 17, 1928, to certify to the correctness thereof because of the tardy filing of the request therefor. The forty-day period provided by Rule I for the filing of a transcript having expired, the motion to dismiss must be granted. It avails the appellants nothing to urge, in opposition to the motion, that they have prosecuted a separate appeal from an order of the trial court denying their motion for relief from default in failing to file their request for a transcript within the ten-day period prescribed by section 953a of the Code of Civil Procedure for inspection of the transcript upon the latter appeal discloses that it was taken too late, having been perfected more than sixty days after the entry of the order attempted to be appealed from.
The appeal herein is dismissed.