Motion to dismiss the appeal for failure to file the transcript within the time prescribed by rule II of this court.
The judgment from which the appeal is taken was entered in the superior court February 9, 1895, and the appeal therefrom was perfected April 13, 1895. The plaintiff gave notice of his intention to move for a new trial on the 19th of February, 1895, and on March 29th served his proposed bill of exceptions and statement of the case on said motion, to which the defendant proposed amendments. December 6th the proposed bill and amendments came on for settlement before the judge, and he, deeming that the proposed bill did not correctly set forth the proceedings had in the case, outlined the nature of the bill which he would settle, and directed the plaintiff within sixty days from that date to prepare and serve upon the defendant a bill of exceptions in accordance therewith, and gave to the defendant thirty days thereafter within which to propose amendments thereto, after which the usual and statutory proceedings in reference to settlement were to be had. Under this order the plaintiff served his proposed bill of exceptions upon the defendant January 27, 1896. The defendant proposed no amendments thereto, but on February 17th moved the judge to disallow the same, and, after argument thereon in behalf of the respective parties, this motion was granted and an order made by the judge disallowing the said bill of exceptions. Thereafter, March 2d, the appellant presented the same ex *579parte to the judge, and requested him to settle and certify the bill, or to fix a day for such settlement, and upon such application the judge refused to settle or certify the same or any bill of exceptions. No statement or bill of exceptions having been filed, the motion for a new trial was denied February 17th, and no appeal has been taken from that order. After the refusal of the judge to settle the bill of exceptions, the appellant took no further steps or action toward obtaining its settlement, or for the filing of a transcript in this court, and on April 7th the respondent gave notice to the appellant of the present motion to dismiss the appeal.
Rule II of this court requires the appellant to file a transcript of the record within forty days after the appeal is perfected, and the bill of exceptions and the statement (if there be any) are settled; and by rule V it is provided that if the transcript be not filed within the time prescribed, the appeal may, on motion of the respondent and notice thereof to the appellant, be dismissed. Upon such motion the respondent is only required to show in the first instance that more than forty days have expired since the perfecting of the appeal, and, in the absence of any further showing on the part of the appellant, the appeal will be dismissed.
The rule, however, provides that, if there be a bill of exceptions or statement, the appellant may have forty days after the same is settled within which to file the transcript. As such a case creates an exception to the time limited by the rule, the burden is upon the appellant to show that he is within the exception, and he must show the existence of such facts as will enable him to avail himself of the exception—either that a bill of exceptions or a statement has been settled, and that forty days have not elapsed since the date of its settlement, or that proceedings for its settlement are still pending before the judge. If the time within which the bill of exceptions or statement may be proposed or settled has not expired, or if proceedings for its settlement are still pending before the judge and undetermined by him, *580the appellant cannot be said to be in default for failure to comply with the rule for filing the transcript. A refusal of the judge to settle the proposed bill, or a dis-allowance of the same after proceedings for its settlement have been taken before him, should be regarded for the purposes of the rule with the same effect as its settlement. The appellant would not know until such action by the judge that the bill would not be settled, and a reasonable construction of the rule would allow him the same time after such disallowance within which to file the transcript as if the bill of exceptions had been settled at that date instead of being disallowed.
In the present case the bill of exceptions was disallowed by the judge February 17, 1896, and the appellant thereafter took no steps to review this action of the judge, or looking toward the settlement of the bill, and the present motion was made after the expiration of forty days therefrom. The fact that a previous motion to dismiss the appeal was pending did not of itself extend the time within which the appellant might file the transcript. Whether the pending of such motion would have been deemed by the court a sufficient ground for extending the time for filing the transcript need not be considered. The appellant made no application for such extension, and the respondent is entitled to enforce the rights conferred upon him by the rule. (Shain v. People’s Lumber Co., 98 Cal. 120.)
The document which was presented to the judge for settlement as a bill of exceptions consisted of the “findings of fact and conclusions of law” made upon the hearing of the application for a supplemental and final decree, together with the “decree” entered thereon, from which the present appeal was taken; and also a copy of the notice of appeal with proof of its service, and a recital that a sufficient undertaking on appeal bad been filed with the clerk. Neither of these matters could be properly included in a bill of exceptions. The two first were already matters of record, and did not need the authentication of the judge in a bill of *581exceptions in order to have them considered upon appeal; and the notice of appeal and undertaking on appeal were made subsequent to the matter appealed from, and could in no way have affected the action of the court.
The motion is granted.
Garoutte, J., and Van Fleet, J., concurred.