Connor

Appeal from judgment and an order denying defendant’s motion for a new trial.

It is conceded by appellant that the appeal from the judgment cannot be considered, because taken too late; and respondent contends that the appeal from the order denying a new trial cannot be considered upon its merits, because the statement was not settled within the time required by subdivision 3 of section 659 of the Code of Civil Procedure.

Appellant’s counsel did not notice the question in their opening brief, and, as no reply brief has been filed, we are without the benefit of any suggestions from them.

The statement contains the following:

The objection to the settlement of the statement was overruled, and plaintiff excepted, and the statement was thereupon settled.

*431 The delay of seven months in presenting the statement and amendments to the judge for settlement is wholly unexplained. The settlement having been objected to on the ground that it was too late, “it became the duty of appellant to incorporate in the bill (statement) the matter, if any, going to excuse his apparent delay; otherwise, the exceptions, though settled, cannot be considered here.” (Higgins v. Mahoney, 50 Cal. 444…