The record-union., 1891-03-29


it nevertheless gives him authority to
charge and receive for his services such
lees "aS are or may be allowed by law to
Justices of the Peace for like services"
Section 225 of the County Government
Act provides:
1.-The following are county charges:
Sub. &. All charges and accounts for
services rendered by any Justice of the
Peace for services in the examination OF
the persons charged with crime not other
wise provided for by law"
Possessing, then. as the Recorder does,
the right to act and charge as aJustice of
the Peace, and he being to all intents and
purposes Justice OF the Peace, when
acting under the Penal Code of the State,
as distinct from the city ordinances, he
must be paid for such services as he may
perform as such, by the county, like any
Justice of the Peace in Il township of a
county. And the fines are subject to the
same disposition as if he had imposed
them as such Justice of the Peace.
For these reasons we advise that the
judgment be affirmed. FooTE, c.
We concur:
VAN CLIEF, c.,
BELCHER, c.
THE COURT.
For the reasons given in the foregoing
opinion the judgment is affirmed.
Filled in San Francisco, March 2l, 1891. ]
Appeal from Superior Court, of the
City and County of San Francisco, De-
partment No. Al. p. Hoge, Judge.
For appellant, L. NJ. Osment.
For respondent, Newlands, Allen &
Herrin.
IN BANK.
VIM. S. CHAPMAN,
VS.. No. II, ,15S.
The BANK OF CALIFORNIA,
Respondent.
Motion to dismiss an appeal from judg-
ment and order denying new trial, on
the ground that the transcript was not
filed in time.
The judgment in favor of defendant
was rendered September 81, 1889. The
order overruling plaintiffs motion for a
new trial, was made August IS, 1890.
Notice of appeal from the judgment and
order was filed and served September 25th
and undertaking on appeal filed Septem-
ber 9th.
The time for filing the printed tran
script prescribed by Rule II. of this court
expired November 5, 1890.
On November 18th, no transcript hav-
ing been filed, respondent served notice
of his motion to dismiss. On the same
day, but subsequent to the service of said
notice, appellant filed written transcript
ouly Cei tillcu ny tu0 tOuuty ClcTk, WHICH
was thereafter printed and served.
The fact that the transcript was filed
the same day notice to dismiss was served
but at later hour does not bring the ap-
pellant within the protection of Rule II.
of this court (Hoyt VS.. S. f. d n. P. r.
Il. No. IA ,066) and the motion to dismiss
must prevail unless the appellant has by
his affidavit shown sufficient excuse for
his delay to call for some relaxation of
the rule providing for the dismissal of
appeals for failure to file the transcript
within the time prescribed.
AS to this, the undisputed facts are that
on September 18th, the very day the notice
of appeal was served, the attorney for APP
pellant was called to the State of Tennes-
see on account of the illness of his
mother, and did not return to California
until October 24th. On his return, owing
to the demands upon his attention of a
multiplicity of business that had accumu-
lated during his absence, by mere mad
vertance he overlooked this case for few
days. But within nine days after the
time for filing the transcript had expired,
viz: ON the Nth of November, he pre-
pared and presented to the County Clerk
correct typewriter copy of the record
to be certified. The clerk was not able to
compare and certify this transcript until
the following day, and in the meantime
the notice to dismiss was served.
This shows that the appeal was taken
and prosecuted in good faith. The delay
in filing the transcript was trifiIng, and
the hearing and decision of the cause on
its merits will not thereby be delayed
at least, not appreciably. The circum-
stances which occasioned the delay and
oversight of counsel were such as to ap-
peal strongly to the discretionary power
of the court, and would, without doubt,
have procured an order extending the
time for filing the transcript if they had
been brought to our attention before the
motion to dismiss was made. If so, there
is no reason why we may not, after the
motion, relieve the appellant from the
consequences of his delay, when the
facts show that before service of the
ceeding with all expedition to rectify his
mistake.
Motion denied. BEATTY, C. J.
We concur:
MCFARLAND, J.,
DEHAvEN, j.,
PATERSON, J.,
SHARPsTEIN, j.,
HARRISON, }.
Filled in San Francisco, March 21, 1891.
Review, to stay proceedings of the Su-
perior Court of the City and County oi
San Francisco, Department No. 5.-John
Hunt, Judge.
For petltlODor, Crlttenden thornton,
F. III. Mergbach and John +. Hanlon.
For respondent, Horace w. Philbrook
IN BANK.
JAMES r. GARNIss,
Petitioner,
VS.. No. Ia. .16O.
SUPERIOR COURT OF SAN
Francisco, John Hunt, J.
Application for writ OF review.
The facts set out in petitioners applica-
ton are as follows: That one Horace w
Philbrook, upon the 18th day of April
| 1890, commenced an action against the
petitioner in the Justices Court of the
City and County of San Francisco upon a
complaint, stating among other things:
That on the 24th day of May, 1889, in the
Superior Court of the City and County OF
San Francisco civil action was COM
menced by Edward Harrison, admins
traitor, ct al, against Mary j. Lynch ei
al, for the purpose of recovering from
said Mary j. Lynch certain lot of land
and of barring the other defendants of all
rights, title and interest therein. That
on the 4th day of February, 1889, a judg-
ment was rendered in said action against
the said defendants. That on the 9th
day of March, 1889, and prior to the COM
mencement of the action of Philbrook
VS.. GarniSS the SUPERIOR Court