ON MOTIONS OPINION 1. Two motions are before us, a motion to dismiss the appeal and a motion for leave to file the judgment roll. The motion made by respondent to dismiss the appeal must be denied. It is made upon the sole ground that appellant's bill of exceptions was not filed within the time allowed by statute. Stats. 1937, c. 32, sec. 31. Even though this be true it furnishes no ground to dismiss the appeal, which has been duly perfected and taken on the judgment roll alone.
2. The motion for leave to file the judgment roll should be granted. The appeal was perfected on December 10, 1940, and the judgment roll, which constitutes the proposed record on appeal, was deposited with the clerk of this court on January 7, 1941, and at the same time the notice of the motion for an order allowing the judgment roll to be filed, was filed with the clerk. Rule 11 of the supreme court provides: "The transcript of the record on appeal shall be filed within thirty days after the appeal has been perfected, and the bill of exceptions, if there be one, has been settled."
It will be noticed that irrespective of whether a bill of exceptions was entitled to be filed as a part of the record on appeal, the judgment roll was presented to the clerk within the thirty days prescribed by the above rule. It was then entitled to be filed.
3. Counsel for appellant stated on the hearing, in reply to a question from one of the members of the court, as to why he did not then file the judgment roll, that it was out of an abundance of caution. We thought then, and do now, that such caution should have suggested the filing. However, we think that depositing the judgment roll and at the same time seeking permission to file it ought to be considered equivalent to an actual filing. Particularly in view of our conclusion, *Page 24 several times expressed, that failure to file a transcript within the time required by the rule is not jurisdictional.
The motion to dismiss the appeal is denied, and the motion for an order allowing the judgment roll to be filed is granted. The clerk will file it as of the date of January 7, 1941.