This is an appeal by the plaintiff, Harold Hensle, from a judgment dismissing his complaint. The action was brought to recover $2,492.50 alleged to be owing by defendant, Keith Carter. Proceedings in garnishment were commenced by which it was sought to reach funds in the hands of Lee R. Langdon, garnishee defendant. The funds are the proceeds of the sale of a dwelling by the defendant to the garnishee defendant. The question is whether the dwelling was the homestead of defendant and the proceeds of its sale exempt from liability for his debts, sec. 272.20(1), Stats.
The court found:
"2. That in June of 1951, the defendant Keith Carter and his family temporarily removed from the said property, with the intention of returning and making the said property at some future date their home; that said intention was expressed pressed in the Clinton Topper, a newspaper published in Clinton, Wisconsin; in correspondence to business friends, and orally to various friends before the commencement of the above-entitled action, and that said intention was testified to by the defendant Keith Carter and his wife, Jane Carter, in the trial of the above action.
"3. That it is the intention of Keith Carter and Jane Carter to use the funds now under the control of the garnishee defendant for the purchase of another homestead.
"4. . . . that the said funds are exempt under sec. 272.20 of the Wisconsin statutes from execution."
And the court concluded that defendant and garnishee defendant are entitled to judgment dismissing the complaint. Judgment was entered accordingly on August 29, 1952. Plaintiff appeals. A cross appeal is taken by the defendant and garnishee defendant from an order entered on February 6, 1953, extending the time for settling the bill of exceptions to February 15, 1953.
GEHL, J.
Notice of entry of judgment was served upon plaintiff's attorney on September 2, 1952. In the absence of an order enlarging the time, service of a proposed bill of exceptions is required within ninety days after service of notice of entry of judgment, sec. 270.47, Stats. By stipulation the time was extended to December 22, 1952. On February 6, 1953, upon notice, the court entered an order further extending the time to February 15, 1953.
The affidavit of plaintiff's counsel, filed in support of the motion for the order entered on February 6th, recites as the reason for requesting the extension the fact that because of the illness of the clerk of the court, who was also the official reporter, and the congested condition of his office the transcript of the testimony was not then completed and available to plaintiff. The affidavit does not state the date upon which the transcript was ordered. The counteraffidavit of defendant's counsel recites, without denial, that the order for a transcript was not given until November 26, 1952, only a week before the time limited by the statute for serving a bill of exceptions, and that if the order had been given reasonably promptly the reporter in the usual course of his business could have furnished the transcript within, approximately six weeks from the date it was ordered.
Sufficient cause for the enlargement order was not shown. The essential facts in this case are strikingly similar to those which appeared in O'Hare v. Fink, 254 Wis. 65, 35 N.W.2d 320. In that case, as here, the appellant relied in part upon the fact that the reporter had been unable to prepare the transcript in time for due service. He offered the additional fact that negotiations for settlement accounted for the delay in ordering the transcript which was not given within a reasonable time after notice of entry of judgment. The court held the facts insufficient to establish cause for an extension. The rule requires the same conclusion in this case.
We are, therefore, without a bill of exceptions and cannot review the findings. Wiesmann v. Donald, 125 Wis. 600, 104 N.W. 916. Since it is not contended that the findings do not support the judgment, as they obviously do, we must affirm.
We might add that we have examined the record and that, if we were permitted to consider whether the evidence supports the findings, we should be required to hold that they are not against the great weight and clear preponderance of the evidence as is claimed by plaintiff.
By the Court. — Order extending the time for settling bill of exceptions reversed. Judgment affirmed.