IN BANC. Suit by F.L. Turnbow and wife against R.A. Keller and wife. From an adverse decree, defendants appeal. On plaintiff-respondent's motion to dismiss the appeal.
MOTION DENIED. *Page 201 Respondents move to dismiss the appeal in this cause for the reason that the transcript was not filed within thirty days after the undertaking on appeal was approved and the appeal was abandoned; and also that the appellants have elected to perform part of the decree prior to the appeal.
An undertaking was filed April 25, 1932. The respondents, under the provisions of section 7-503, subdivision 2, had five days within which to except to the sufficiency of the sureties. Subdivision 4 of that section provides that from the expiration of the time allowed to except to the sureties in the undertaking the appeal shall be deemed perfected. Five days from April 25, 1932, the appeal became perfected, or on May 1, 1932.
Section 7-507 provides that upon the appeal being perfected the appellant shall, within thirty days thereafter, file the transcript with the clerk of the appellate court. The transcript was filed in this case on May 31, which was within the thirty days allowed by law.
Counsel for appellants call attention to the fact that according to the computation of respondents the thirty days would end on May 30, 1932, which was a holiday. Therefore the transcript could be filed on May 31, 1932. The transcript was filed within the statutory period of thirty days.
The respondents show that an interlocutory decree was entered giving the defendants ninety days in which to pay the plaintiffs the amount due on a contract for a deed, claiming that the appellants paid $50 within *Page 202 the ninety days "to apply on the judgment under said interlocutory decree". This is contradicted by the appellants. According to the statement of respondents payment was made before the final decree was entered. There could be no acquiescence in the decree until the same was rendered and entered.
The motion to dismiss the appeal is not maintainable on either ground mentioned.
Motion denied.