This case was tried in Sacramento before Hon. S. C. Denson, the late judge of the late sixth judicial district, and findings and judgment against the plaintiff were filed on the seventeenth of May, 1878. On the twenty-fifth of the *404same month of the- same year, the plaintiff filed and served a notice of motion for a new trial, on the sole ground of “ insufficiency of the evidence to justify said decision therein, and that it is against law,” and stated in said notice that said motion would “ be made and heard upon the records and minutes of the court in said action.” This motion was heard before the Hon. T. B. McFarland, judge of the Superior Court of Sacramento county, which, intermediate the filing and hearing of said motion, had succeeded to the jurisdiction of said late district court. On the seventeenth of September, 1883, said motion was denied. Thereupon the plaintiff’s counsel prepared a statement on appeal, which defendant’s counsel moved to have stricken out, on several grounds which it is unnecessary to specify. This motion was heard before the judge of said Superior Court, and by him denied. The parties stipulated that said judge should hear said motion, and if he denied it, “ settle the statement on the same day and time.” Instead of doing so, however, he “ ordered that the settlement- of the said statement on appeal be * * * referred to the Hon. S. C. Denson, ex-judge of the district court of the-sixth judicial district in and for the county of Sacramento.” And the statement before us has the following certificate appended to it:
“ The foregoing corrected and amended statement having been submitted to me for settlement, I have very little recollection of what occurred upon the trial; but the defendant’s amendment having been incorporated into plaintiff’s draught, I presume the statement to be now correct, and therefore now allow and certify the same to be a correct statement of the case.
“ S. 0. Denson, Ex-District Judge.
“ Sacramento, December 13, 1883.”
If this constitutes a statement on appeal, it is our duty to review the order appealed from. The statement was not settled by the judge who heard and denied the motion for a new trial. The decision excepted to—the denial of plaintiff’s motion for a new trial—was made by the judge of said Superior Court, and not by the judge of said late district court. If the plaintiff, in *405his notice of intention to move for a new trial, had stated that it would be made upon a statement of the case, and had prepared and served such statement in the manner and within the time prescribed in the code, the judge who tried the case and made the decision excepted to would have been the proper person to settle such statement, whether, at the time it was presented to him for settlement, he was a judge or had ceased to be one.
The plaintiff did not give notice of his- intention to move upon a statement, nor prepare or present one for settlement before his motion was heard and denied. But he did move upon the records and the minutes of the court, and his motion was not heard before the judge who tried the case, but before his successor, who denied the motion. To that order the plaintiff excepted, and from it this appeal is taken. Section 661, Code Civil Procedure, provides that in a case like this, the judgment roll, and a statement to be prepared after the motion is decided, with a copy of the order, shall constitute the record on appealj and then fixes the time within which such subsequent statement shall be proposed and amendments thereto be prepared, and thereafter proceedings shall be had as provided by section 659, Code Civ. Proc.; “ but the statement shall only contain the grounds argued before the court for a new trial, and so much of the evidence or other matter as may be necessary to explain them; and it shall be the duty of the judge to exclude all other -evidence or matter from the statement.” Subdivision 3 of section 659, above referred to, provides that where an action is tried by a judge, he shall settle the statement on motion for a new trial.
But the question here is, Who shall settle a statement proposed on appeal, after a motion for a new trial has been heard and decided? And that, we think, is answered by section 653, Code Civ. Proc., which provides, in substance, that the judge or judicial officer who made the decision excepted to shall settle the bill of exceptions, whether, at the time it is presented to him, he is or is not such judge or judicial officer. And this view of the question is strengthened by the provision of section 661, that “ the statement shall only contain the grounds argued before the court for a new trial, and so much of the evidence or *406other matter as may he necessary to explain them.” This certainly seems to contemplate a settlement of the statement by the judge who heard the argument for a new trial. And we think that he wTas the only person who could settle a-statement, on appeal from an order made by him, unless he had died, been removed from office, become -disqualified, or was absent from the state.
The appeal is not fromtanydecision of said late district court, and there is, in our opinion, no authority or reason for holding that the judge of that court should settle a statement on appeal from a decision made by the judge of the-Superior Court. In the absence of a statement settled by the judge who made the decision excepted to, we have no jurisdiction to review said decision. Appeal dismissed.
Myrick, J., McKinstry, J., Morrison, C. J., McKee, J., and Ross, J., concurred.