Bunnel

Appeal from a decree foreclosing a mortgage on real estate, and from an order denying the defendants a new trial.

The case was decided against the appellants on a former hearing, on the ground that the homestead relied upon by the defendants was void, for the reason that the declaration thereof did not contain an estimate of the cash value of the property, as required by section 1263 of the Civil Code. (Knock v. Bunnell, 21 Pac. Rep. 961 .) It was discovered, subsequently, that at the time this homestead was declared the statute did not require a statement of the value of the property, and a rehearing was granted, and the case has again been heard.

The motion for a new 'trial was properly denied, for the reason that no statement of the case was filed in time. The code requires that the statement be served within ten days after the service of notice of intention to move for a new trial. (Code Civ. Proc., sec. 659, subd. 3.) The moving party must prepare and serve his statement within the time allowed by law for that purpose, or it cannot be settled, or if settled, cannot be considered either at the hearing of the motion or on appeal to this court. (Quivey v. Gambert, 32 Cal. 304,…

— I dissent. The findings do not respond to all the material issues.