This is a motion to dismiss the complainant's appeal from the final decree of the Superior Court on the ground that the transcript of testimony was not filed by complainant in the office of the clerk of the Superior Court within the time fixed by the trial justice. Final decree was entered on the third day of December, 1910. On the thirty-first day of December, 1910, the complainant filed her appeal and reasons therefor, and by said justice was given until January tenth, 1911, to file a transcript of the testimony in *Page 40 the case in the office of the clerk of the court. On January tenth, 1911, the said justice, under the authority given to him in section 4, chapter 278, Gen. Laws, 1909, extended the time for filing the transcript of testimony to January seventeenth, 1911. Said transcript was filed by the appellant in the office of the clerk of the Superior Court on January twentieth, 1911.
As part of the procedure in appeals in equity causes, section 26, chapter 289, Gen. Laws, 1909, in part is as follows: "The party taking an appeal shall, within ten days after filing a claim of appeal, or within such extended time as the court may allow, but not later than fifty days after the filing of such claim, or in case the court shall extend the time for filing a transcript of the evidence, as provided in section four of chapter two hundred seventy-eight, then not later than ten days after the expiration of such extended time, file with the clerk a transcript of the testimony taken orally in the cause, if any, or so much thereof as may be agreed by the parties." The statute plainly provides that in case the court extends the time for filing the transcript as provided in section 4, chap. 278, the appellant may file the transcript at any time within ten days after the end of this extended period fixed by the court. The appellant in this case filed the transcript on the third day after the expiration of such extended time and we must hold that it was seasonably filed.
The motion of the appellee is denied and dismissed.