*335On Motion for Rehearing.-
(Decided November 29, 1920.)
MR. JUSTICE HOLLOWAYdelivered the opinion of the court.
In the original opinion heretofore promulgated, this court by inadvertence made the statement: “The bill of exceptions was not prepared within the time allowed by law or the order of the court.” There was not any bill of exceptions whatever before the court at the time the motion for a new trial was submitted. The statement should have been: “The affidavit in support of the motion for a new trial was not prepared within the time allowed by law or the order of the court.”
The record discloses that the notice of intention designated, as the moving papers, the minutes of the court and affidavits thereafter to be prepared; that upon application the court granted an extension of time for the preparation, service and filing of the affidavits; that the period as thus extended, expired on February 2; that it was not until April-28 that plaintiff’s affidavit—the only one offered in support of the motion—was served or filed; that the motion for a new trial was not submitted to the court until May 29; and that timely objection was made to the consideration of the affidavit.
The order denying the motion is general in terms and must [8] be sustained, if it can be upon any legitimate ground. The fair inference from the record is that the trial court disregarded the affidavit because it was not filed in time. Upon this motion for rehearing, counsel insist that, even though the affidavit was not properly before the lower court, the minutes of the court were, and upon them alone a new trial should have been granted. This contention requires brief consideration of the statutes governing new trial proceedings.
Section 6794, Revised , Codes, designates the several causes [9] for all or any of which a new trial may be granted. *336From 1895 to 1907, a motion for a new trial could be heard only upon affidavits, or a bill of exceptions or statement duly settled and allowed before the motion was submitted (see. 1172, Code Civ. Proc. 1895). By an Act approved February 26, 1907 (Laws 1907, p. 89), the scope of existing .statutes was enlarged and the minutes of the court were designated as among the records and papers upon which a motion for a new trial might be made. Since the date of the amending Act, the statute—now section 6795, Revised Codes—has provided that certain of the causes mentioned in section 6794 must be presented by affidavit, others by affidavit or bill of exceptions, or both, and still others by bill of exceptions or the minutes of the court. Under the construction heretofore placed upon section 6795, the moving party may, in the- same motion, present some of the causes by affidavit, others by bill of exceptions, and others upon the minutes of the court (Moore v. Butte Elec. Ry. Co., 47 Mont. 214, 131 Pac. 635); but, irrespective of the mode selected, the moving party must pursue the statute in all substantial particulars. (State ex rel. Stromberg-Mullins Co. v. District Court, 28 Mont. 123, 72 Pac. 412.)
In enacting the amendatory statute of February 26, 1907, [10] the legislature had a distinct purpose in view, vis., to avoid the delays incident to new trial proceedings under prior statutes, by providing the means for a hearing upon the motion immediately after the notice of intention is given and when the proceedings, including the evidence, are fresh in the minds of court and counsel. (State ex rel. Cohn v. District Court, 38 Mont. 119, 99 Pac. 139.) This legislative purpose is emphasized in one of the amendments referred to and now incorporated in section 6797 as follows: “The application for a new trial must be heard at the earliest practicable period after notice of the motion, if the motion is to be heard upon the minutes of the court.”
It would defeat the very purpose of the statute to permit the moving party to designate the minutes of the court and *337affidavits as the moving papers, secure an extension of time for preparation of the affidavits, afterward abandon them by failing to prepare them within the time allowed, and still insist that the motion should be heard upon the. minutes of the court.
As observed before, the order denying the motion does not indicate the reason for the court’s ruling. The evidence should have been disregarded for failure of the moving party to submit the motion within the time contemplated by section 6797. But if these objections be waived, the result would not be different. From a review of the evidence we are unable to find that the court abused its discretion in denying the motion for a new trial.
The inadvertence of this court indicated above does not require a rehearing of the cause, and the motion for a rehearing is accordingly denied.
Rehea/ring denied.
Mr. Chief Justice Brantly and Associate Justices Hurly and Cooper concur. Mr. Justice Matthews deeming himself disqualified, took no part in the original decision, and therefore takes no part in this.