delivered the opinion of the court.
Appellee herein moves the court to strike the statement of facts from the record and affirm the judgment of the court' below. As this is a cause in equity, it follows, from opinions already filed at this term, that in the opinion of a majority of the court the motion to affirm must be granted, if the facts are stricken, and we. need therefore only consider the latter question. Notice to settle the facts was given within thirty days, but under such notice nothing was done, and therefore such notice was of no avail. After the expiration of the thirty days fixed by statute, the court made an order extending the time in which to serve new notice and settle the facts, and under a notice given thereafter the statement was settled, if at all. We are all of the opinion that the District Court had no power to thus extend the time, and that the giving of the notice was not aided by such extension. The notice then being of no effect, and there having been no appearance by the appellee excepting for the purpose of objecting to the court doing any*245thing, the judge had no jurisdiction to settle the statement.
It follows that it must be stricken, and the motion to affirm granted.
Turner, J. — I concur.
Langeord, J. — I agree that the case as it now stands should be affirmed, not on motion, but on trial on the merits.