I concur in the judgment, except that portion which sustains the appeal from the order striking out the statement on new trial, and from that portion of the judgment I dissent, as I am of the opinion that Quivey v. Gambert, and the cases decided on the authority of that case, state the correct rule.
*121[A petition for a rehearing was afterwards filed, on behalf of the respondents, and in response thereto the following opinion was rendered:]
By the Court, Wallace, J.:We understood from the record in this ease, and understand now, that the Court below struck from its files the statement placed there by the defendant in support of the motion for a new trial. We understood, too, and still understand from the record, that the ground upon which the order was made by the Court below was that the statement, though filed, had never been served upon the plaintiff’s attorney. We reversed this order because we held, as was held in Quivey v. Gambert, 82 Cal. 305, that such an order cannot be supported if objected to below. Even though service of a statement on motion for new trial had been required by a rule of the Court, or by statute (which it is not), the Court, while it might deny the motion for a new trial for failure to serve it (if the opposite party made it an objection to granting the motion), could not properly strike the statement from the files.
The petition for a rehearing is founded upon a total misapprehension of the decision made here, as well as of the ground upon which it rests, and it is therefore denied.