On Rehearing.
It is urged that the order made upon the application of the appellant extending the time within which to file the amended motion for new trial and to make presentment thereof for action by the court was allowable under the statute. By express terms of article 2092, subdivision 28, as amended by Acts 41st Leg. (1930), 5th Called Sess., c. 70, an original motion for new trial timely filed, and which was “not acted on at the term of court, at which it was filed,” shall not be considered as waived or overruled, but may be disposed of at a time; namely, (1) At the succeeding term of the court, or (2) at any time which the judge may fix, or (3) at any time fixed by the agreement of the parties with leave of the court. It was clearly intended by such provision to save something which would otherwise be lost, and therefore the general provision mentioned should be regarded as having the same effect as a saving clause in a repealing statute. Such general provision, .however, in view of following parts of the same section, was not intended to be unlimited in time of performance. By the subsequent clause it was expressly declared that the motion and amended motions for new trial (1) “must be presented within 30 days after the original motion or amended motion is filed”; (2) “and must be determined within not exceeding 45 days after the original or amended motion is filed.” The only departure allowable by the act from the time provisions stated is that of “unless by written agreement of the parties filed in the case the decision of the motion is postponed to a later date.” That particular designation of time for doing of acts required to be performed was manifestly intended to control the acts to be done and to operate as a limitation upon the time required for the doing of the certain *790acts to be done. Especially should it be held to be mandatory, in view of the late amendment of section 28 by the Legislature.
The motion for rebearing is overruled.