It appearing that the appeal herein was perfected and the statement settled more than forty days *480before the transcript of the record was served and filed, and the time to serve and file said transcript not having been extended by stipulation or by order of the court, and no transcript having been served or filed until after the notice to dismiss the appeal herein had been served and filed, it is ordered that said appeal be, and the same is, hereby dismissed.

Thornton, J., dissenting.