#### Minerva C. Cook *v.*John J. Cook.

*At Ottawa, September Term, 1882.*

1. Extension or time to rile *transcript—time for malting the application.*An application for an extension of time for filing the transcript of the record in this court, in the case of an appeal, must be made within the time prescribed by the statute for the filing of such transcript.

2. If the party appealing is unable to procure a complete transcript within the time, as, where his bill of exceptions is not signed by the judge who tried the cause, he -should, within-the time limited by statute, file a transcript of so much of the record as is then obtainable, and, within the same time, move for further time in which to bring in the remaining portion of the record. The fact that the court below, in allowing jhe appeal, may have given time for filing the bill of exceptions beyond the time prescribed by law for filing the transcript in this court, can make no difference in the application of this rule.

This cause came to this court on appeal from the circuit court of Kane county. A transcript. of the record not having been filed in this court within the time prescribed by the statute, the appellee entered his motion, based upon what is known• ás a “short record,” for a dismissal of the appeal. That motion was allowed. On a subsequent day of the term Mr. J. H. Mayborne, in behalf of the appellant, moved the court to set aside the order of dismissal, and to continue the cause, to the end that appellant may have reasonable time in which to file a transcript of the record in this court. The facts upon which this motion is founded, as disclosed by affidavit, are as follows: The judgment appealed from was rendered on the.9th day of June, 1882. Ninety days were allowed to appellant in which to file an appeal bond and a bill of exceptions. The appeal bond was filed about the first day of September. The bill of exceptions in the case was prepared and agreed upon • by counsel about the 5th or 6th day of September, within the time allowed by the court below *99for filing the same, but appellant’s counsel was unable to' present the bill of exceptions to the judge who tried the cause, to be signed by him, within the time fixed by the court, for the reason said judge was absent from the State, so that the bill of exceptions was not signed until the 15th. day of the present month, September, when it was filed in the office of the clerk of the court below. It is further stated that the clerk of that court is now preparing the transcript of the record.

Craig, J.:

The facts stated do not take the case out of the rule that an application for an extension of time to file the transcript of the record in this court, in the case of an appeal, must be made within the time prescribed by the statute for the filing of such transcript. It is not made to appear here at what date the term of the court at which the judgment appealed from was rendered, came to a close, but we will assume, for the purposes of this motion, in the absence of anything showing the contrary, that twenty days intervened between the last day of that term and the sitting of this court. That being the ease, a complete transcript, of the record should have been filed on or before the second day of the present term. Or, if the appellant was unable within that time to procure a complete transcript, then she should have filed a transcript of so much of the record as could be obtained, and within the time go prescribed for filing the transcript she should have made an application for an extension of time to, complete the record. The matter of the court below allowing the appellant ninety days within which to file the appeal bond, and the bill of exceptions, thus extending beyond the time prescribed by law for filing the record in this court, can make no difference. The appellant should have filed in proper time a transcript of so much of the record as was then obtainable, had the cause placed upon the docket, and then .entered a motion, for further time in,which to. bring *100in the remaining portion of the record. Not having filed a complete transcript within the time prescribed by the statute, or a transcript of so much of the record as could be obtained, and asked for further time to complete the same, within the requirement of the rule, the appellee was entitled to have the appeal dismissed.

*Motion denied.*