Whipple

Action to quiet title. The plaintiff had judgment, and the defendant, Horace A. Mayhew and Mary J. Mayhew, appeal from the judgment, and also from an order denying their motion for a new trial.

No point is made upon the appeal from the judgment. The complaint is sufficient, and the facts found support the judgment. The motion for a new trial was heard, as the order denying the motion recites, upon affidavits of newly discovered evidence. Affidavits are printed in the transcript, but they are in no way identified as having been the affidavits used upon the hearing of the motion, nor does the transcript show that they were even filed in the court below. That they cannot be considered by this court has often been decided. It is true that the court in its order denying the motion refers to affidavits, but not in such a way as to identify these as the affidavits referred to.. (Fish v. Benson, 71 Cal. 431 .)

The defendants have also appealed from an order refusing to settle a bill of exceptions. After the decision upon the trial the-defendants served upon the plaintiff their proposed bill of exceptions February 28, 1896, to which on March 18, 1896, the plaintiff proposed certain…