81 P. 1105 | Cal. | 1905
This is a motion to dismiss defendant's appeal from an adverse judgment for her failure to file a transcript within the time limited by the rules of this court. The fact of the failure is admitted. It is sought to excuse it by a showing of the following facts:
Defendant in due time perfected her appeal from the judgment and likewise gave notice of her intention to move for a new trial. The date of filing her transcript in this court was *425
extended from time to time by a stipulation between the parties, and during this period the court heard and granted defendant's motion for a new trial. After the order granting a new trial had been made defendant neither sought for nor obtained any further extension of time for the filing of her transcript, has never filed any transcript, and for a long time has been in default in this regard. Plaintiff in turn duly took his appeal from the order granting a new trial. It is contended by the respondent on this motion that the judgment being vacated by the order in her favor granting the new trial there is no longer any judgment from which she can prosecute her appeal, but, upon the other hand, she insists that she should be protected so that in the event that this court should reverse the order granting the new trial and thus revivify the judgment she may then proceed with her appeal from it. In this contention she is in error. During the time in which an appeal from an order granting a new trial may be taken, and during the pendency of such an appeal, the judgment is not absolutely vacated. It is absolutely vacated only when the order granting a new trial becomes a finality. Certain rights under the judgment are, of course, suspended, but it is still a potential judgment sufficient to support the appeal taken from it. (Pierce
v. Birkholm,
Respondent's delay in filing her transcript standing thus unexcused, it is ordered that her appeal from the judgment be dismissed without prejudice to any of her rights under the order granting her a new trial.
Lorigan, J., and Beatty, C.J., concurred. *426