Upon this state of facts the court retained its jurisdiction of the judgment by its last order of extension of time, made June 14, 1901, the extension reaching into the next term. Henrichsen v. Smith (Or.) 44 Pac. 496. It appears from the records and affidavits of Milroy and Hannum that the failure to have the bill of exceptions duly settled was in the first instance due to Judge Noyes’ refusal to consider the bill from lack of time so to do, and afterwards to his failure to return to Nome. That it was not in the power of Judge Wickersham, his successor, to settle the bill of exceptions, has been abundantly established by the highest courts of the United States and of Oregon.
In the case of Malony v. Adsit, 175 U. S. 284, 20 Sup. Ct. 115, 44 L. Ed. 163, carried from the District Court of Alaska to the Supreme Court of the United States, Judge Delaney in the lower court tried the case, but relinquished his office without signing the bill, and his successor signed the bill. Judge Shiras, for the Supreme Court, said that, “No bill of exceptions can be deemed sufficiently authenticated unless signed by the judge who sat at the trial, or by the presiding judge if more than- one sat.” In the course of, the same opinion the-court cites Mussina v. Cavazos, 6 Wall. 355—363, 18 L. Ed. 810, Borrowscale v. Bosworth, 98 Mass. 34, and several English cases, as authority for the proposition therein decided that “the failure or omission of the judge who tried the case to sign a bill of exceptions could not be supplied by agreement of the parties, but that the only remedy was to be found in a motion for a new trial.”
*4To the same purport is the decision of the Supreme Court of Oregon in Henrichsen v. Smith, 44 Pac. 496. See, also, 3 Pleading & Practice, 488, wherein are cited many other cases. The court therefore deems itself fully warranted in granting to the plaintiff the remedy the law plainly gives-her, and will vacate the judgment and award a new trial.