Sutton

Judgement was rendered and entered in this action in favor of the plaintiff October 7, 1890, .and the time for serving and filing a notice of intention to move for a new trial was extended by stipulation and by an order of the court until January 5, 1891. January 3, 1891, the defendants served upon the plaintiff a notice of their intention to move for a new trial, stating therein that it would be made upon a statement of the •case, but the notice was not filed with the clerk until January 10,1891. At the same time with serving this notice the defendants served upon the plaintiff their proposed •statement of the case, to which the plaintiff afterwards proposed amendments. We have assumed, in accordance with the admission by counsel for both parties, •that this statement was afterwards settled by the judge *577 and filed with the clerk, but the record fails to show these facts. The plaintiff afterward moved the court to strike this settled statement from the files, and on the 13th of September, 1891, this motion was granted. The motion for a new trial came on to be heard September 13, 1892, at which time the defendants asked the court to vacate its previous order striking the…