26 Wash. 493 | Wash. | 1901
Tho opinion of the court was delivered hy
Respondent moves to dismiss this appeal for the reason that no transcript of the record was prepared, certified, and filed in the office of the clerk of the superior court at or before the time when the appellant served and filed his opening brief, as provided hy § 2, p.,29, Laws 1901. The notice of appeal was served July 30, 1901. The transcript was certified and filed in the office of the clerk of the superior court on the 16th day of August, 1901. Thus appellant had caused the transcript to he certified and filed long before the expiration of the ninety days as provided hy the statute invoked hy respondent. It, however, appears that appellant served and filed his opening brief on the 12th day of August, four days before the transcript was filed. Respondent complains that this was in violation of the statute above cited, which provides:
*495 “Said transcript to be so prepared, certified and filed, in the office of the clerk, at or before the time when the appellant shall serve and file his opening brief.”
This motion, however, was not made until after the record was supplied. In Gustin v. Jose, 10 Wash. 217 (38 Pac. 1008), this court held that, where a motion is made to dismiss an appeal for failure to send up the record to this court within the statutory time, it will not be granted when the motion is not made until after the appellant has furnished the record. The court in that case observed as follows:
“This court has uniformly held that, where motions of this kind are made after the record has been furnished by the appellant, the motion to dismiss will not be entertained. We see no reason why we should vary the rule in this case. If, upon the default of the appellants, the respondents had availed themselves of their privilege to have moved the dismissal of the appeal for that reason, the court would have considered it, and without good cause shown for the delay would have granted the motion; brit inasmuch as they have waited until the default has been cured by the affirmative action of the appellants we cannot see that they have received any substantial injury by the delay.”
This motion seems to be analogous to the one under consideration in the above case. It was not made promptly after the service of appellant’s brief while the default existed, followed by a short record brought here upon the motion, but was raised for the first time in respondent’s brief, long after the record was supplied, and -was submitted to this court at the time the cause was submitted on its merits. Whether, if the motion had been seasonably made as above indicated, we should have considered it one that should be granted, it is not necessary to decide; but for reasons aforesaid the motion is denied.
“If Goodfellow still held the equity of redemption, and if the action was against him alone, it is evident his absence from the state would afford a sufficient answer to the plea of the statute of limitations. So long as he retained the equity of redemption, and no other rights had intervened by reason of subsequent liens or incumbrances, he had the power, by written stipulation under the statute, to extend the time within which the debt should not be barred, or he might suspend the running of the statute by his absence from the state. So long as his rights only were to be affected, it was within his power to suspend the operation of the statute, either by a written stipulation or by absenting himself from the state. But this court has repeatedly decided that as against subsequent incumbrancers, or a subsequent holder of the equity of redemption, the mortgagor has no power, by stipulation to prolong the time of payment, or in any manner increase the burdens on the mortgaged premises. Lord v. Morris, 18 Cal. 482; McCarthy v. White, 21 Cal. 495 (82 Am. Dec. 154) ; Lent v. Morrill, 25 Cal. 500; Low v. Allen, 26 Cal. 141; Lent v. Shear, 26 Cal. 361; Barber v. Babel, 36 Cal. 11; Sichel v. Carrillo, 42 Cal. 493.”
The judgment is reversed, and the cause remanded, with instructions to the court below to enter judgment declaring the mortgage lien canceled, with costs taxed in favor of appellant.
Beavis, G. J., and Dunbar, Fullerton, Anders, Mount, and White, JJ., concur.