ON REHEARING.
De Witt, J.The argument upon rehearing in this case has presented nothing which was not considered on the first hearing. The argument was simply a reiteration of the points passed upon in the original decision.
Counsel call our attention to the case of Moe v. Northern Pac. R. R. Co., 2 N. Dak. 282, as being in point. In that case the North Dakota court had under consideration section 5093 of the Compiled Laws of North Dakota, which is as follows: “The court or judge may upon good cause show in furtherance of justice, extend the time within which any of the acts mentioned in sections 5083 and 5090 may be done, or may, after the time limited therefor has expired, fix another time within which any of such acts may be done.”
From that case counsel quote as follows: “That the authority conferred by said section to extend the time to settle a bill of exceptions and statement after such statutory period for so doing has expired is not absolute, but such discretion is a sound judicial discretion.”
.The decision is not in point, and the industry displayed in counsel’s brief of this case ought to have shown them that the Dakota cause was not applicable; for the Dakota statute does not provide, as does ours, that such extension shall not exceed a given number of days named by the statute, beyond the time prescribed, without consent. (Code Civ. Proc., § 536.)
Counsel again dwell upon section 298, subdivision 3, Code *475of Civil Procedure, in connection with section 536. Those sections, read together, provide as follows: “The party moving for a new trial must, within ten days after the service of notice of intention to move, or such further time as the court or judge may allow, prepare a draft of the statement,” etc. (§ 298, subd. 3.) “But such extension so granted by the court or judge shall not exceed thirty days beyond the time prescribed by this act, without the consent of adverse party.” (Code Civ. Proc., § 536.)
The whole provision, therefore, is that the statement must be served within ten days, or such further time as is allowed (not exceeding thirty days) unless there be a consent of parties.
It was said in the Dakota case cited above: “ The statutory time limited for giving a notice of intention, and for having bills of exceptions and statement settled, is ordinarily ample for the purpose. It rarely happens that further time is necessary.”
So, in our practice, if the party preparing a statement takes the limit, as he may, of all the periods allowed him by statute, and the extensions by the court, he has ample time in which to prepare his statement. For, to commence with, he has ten days after the verdict of the jury to file and serve his notice of intention. (Code Civ. Proc., § 298.) ■ He then has ten days after the service of this notice to serve his statement. (Code Civ. Proc., § 298, subd. 3.) Then, again, the court or judge may extend the time for thirty days more. This gives an aggregate of fifty days.
Counsel again contend that the record does not disclose that the extensions of time were given in the absence of defendants or their counsel, thus arguing that they were impliedly by the consent of the parties. (Code Civ. Proc., § 536.) But, as noticed in the original decision, the first order of extension appears by the record to have been made “without the consent, advice, or stipulation of defendants or their counsel,” and it does not appear that any of the further extensions were by consent, and the statute provides that, unless they were by consent, they are prohibited. (Code Civ. Proc., § 536.)
It is our opinion that the original decision should remain as the judgment of this court, and it is so ordered.
Pemberton, C. J., and Harwood, J., concur.