
    SMITH v. FISHER.
    Extension or hie Time to Eile Transcript on Appeal in this court, under rule 2, must be obtained before the expiration of the time in which, under said rule, the transcript should be filed, or the appeal will be dismissed on motion.
    Where a Party Appears and is Heard in Opposition to an Ex Parte Motion, thereafter he is precluded from treating the order made upon such motion as an ex parte order.
    Appeal from the third district court. The defendant appealed, but failed to file the transcript on appeal within thirty days from the date the appeal was perfected. Subsequently the defendant, on application to the chief justice, without disclosing that the time for filing the transcript had expired, obtained an order extending the time to file the transcript, and within' this extension of time filed the transcript. The plaintiff, under rule 3, applied ex parte for an order dismissing the appeal; the defendant was heard, at his request, in opposition to the motion. The rules of the supreme court provide:
    “Rule 2. In all cases where an appeal’shall be perfected, the transcript of the record shall be filed in this court within thirty days after such appeal shall have been perfected, unless further time be allowed by the court ox one of the justices.
    “ Rule 3. If a transcript be not • filed within the time prescribed or allowed, the appeal may be dismissed, on motion, during the first week of the-term without notice, and at any time afterwards on notice; a cause so dismissed without notice may be restored during the same term on notice of five days to the adverse party, and for good cause shown; and unless so restored, the dismissal shall be final and a bar to any other appeal in the same cause.”
    
      R. B. Tripp, for the motion.
    
      J. B. Billey, contra.
    
    The court, without filing a written opinion, dismissed the appeal, holding that the chief justice, after the expiration of thirty days from the perfecting of the appeal, had' no power under the rules to extend the time for filing the transcript.
    All the justices concurred.
    Subsequently the defendant moved, under rule 3, to reinstate the appeal.
    
      H. F. Williams, for the motion.
    
      R. B. Tripp, contra.
    
   The court overruled the motion to reinstate, holding that defendant’s appearance on the motion to dismiss the appeal precluded him from treating the order dismissing the appeal as an ex parte order.  