Frankel

—This is an application based upon the

provisions of section 652 of the Code of Civil Procedure, to prove an exception which it is alleged the court refused to allow in accordance with the facts. It appears from the petition and from the record that the statement was served on October 23, 1888, and the amendment thereto December 28,1888; that the statement was settled *45 on May 9, 1889; that under a stipulation of counsel for plaintiff and defendants, the settlement of the proposed statement was submitted to the judge upon briefs. This stipulation provided that as soon as the statement was settled, plaintiff’s motion for a new trial should be deemed to be made and submitted to the judge for his decision without argument, and that any further notice of the time of the settlement of the statement, and of the hearing of the motion for a new trial, should be waived by both parties. On May 10,1889, the attorneys for plaintiff filed a written motion for a new trial, stating that “this motion is made upon said settled statement and the judgment roll in said action.....The

above motion is submitted without argument pursuant to stipulation on file herein.” On May 10, 1889, the judge…