
    [Sac. No. 1253.
    Department Two.
    May 21, 1904.]
    FERNANDO CASTRO et al., Respondents, v. JOSEPH BREIDENBACH et al., Defendants; J. T. SUMMERVILLE, Appellant.
    Appeal—Motion to Dismiss—Failure to File Transcript—Unsettled Statement—Laches not Appearing.—A motion to dismiss an appeal from the judgment on the ground that the transcript has not been filed in time will be denied, where it appears that a proposed statement on motion for a new trial, and the proposed amendments thereto were regularly presented to the clerk of the trial court, and by him to the judge, and that the judge has not yet settled the same, if no such laches of the appellant appears as would warrant the dismissal of the appeal, and no motion was made to dismiss the motion for new trial for want of prosecution.
    MOTION to Dismiss an Appeal from a judgment of the Superior Court of San Joaquin County. E. L. Jones, Judge.
    The facts are stated in the opinion of the court.
    Joshua B. Webster, Charles Light, and D. E. Alexander, for Appellant.
    F. O. Housken, and J. M. Kile, for Respondents.
   THE COURT.

This is a motion to dismiss the appeal of defendant Summerville from the judgment, on the ground that the transcript has not been filed in time. Waiving the question whether certain amendments to the notice of motion to dismiss were allowable, and assuming that the motion is properly before us, it must be denied. It appears that a proposed statement on a motion for a new trial, and the proposed amendments thereto, were regularly presented to the clerk of the trial court and by him to the judge, and that the latter has not yet settled the same; and from the papers before us we do not think that appellant is responsible for the delay in the settlement, or guilty of such laches in the premises as would warrant us in dismissing his appeal. No motion was made in the court below to dismiss the motion for a new trial on the ground of want of prosecution.

The motion to dismiss the appeal is denied.  