JAMES W. ARNOLD, Appellant, v. THE CITY OF SAN JOSE, Respondent

[No. 12626. Department One. December 5, 1889.] JAMES W. ARNOLD, Appellant, v. THE CITY OF SAN JOSE, Respondent. New .Trial — Settlement of Statement — Presumption.—Where a motion is made to disregard a statement on the ground that it had not ■ been presented within the time allowed by law, stipulations of counsel, and orders of the court, an order denying such motion determines nothing against the mover. The objections made by him may be preserved in the statement before settlement, and the presumption is, that if well taken the court below will give him the benefit of them. Appeal from an. order of the Superior Court of Santa Clara County denying a motion to disregard a statement on motion for a new trial. The facts are stated in the opinion of the court. Crandall & Biddle, and J. C. Black, for Appellant. D. W. Herrington, and W. B. Hardy, for Respondent. [MAJORITY — Paterson, J.] Paterson, J. Plaintiff had judgment in the court below. Defendant served a notice of intention to move for a new trial, and in due time thereafter prepared and served a statement. Plaintiff served certain amendments which the defendant did not adopt. On November 10, 1886, the statement and proposed amendments were left with the clerk. Plaintiff, believing that the statement and amendments had not been presented within the time allowed by law, orders of the court, and stipulations of counsel, asked the court to disregard defendant’s statement and deny his motion for a new trial. The order appealed from reads as follows: “Motion of plaintiff to disregard defendant’s statement denied, and cause ordered on the law calendar for settlement of statement and amendments thereto.” We are unable to see how the plaintiff could be prejudiced by this order. It determines nothing against him. The objections made by him can be preserved in the statement before settlement, and the presumption is, that if they are well taken the court below will give him the benefit of them by denying the defendant’s motion for a new trial, without regard to or consideration of such motion on its merits. No question is raised as to whether the order is an appealable one. Order affirmed. Fox, J., and Works, J., concurred. Hearing in Bank denied.