Application for a writ of mandate to compel judge to settle bill of exceptions.
It appears from the letter of the trial judge set forth in the petition that he is willing and ready to settle the bill *Page 27 if there be eliminated therefrom all matter appertaining to the notice of intention to move for a new trial and all matter appertaining to a motion for new trial. This, so far as appears, is all that appellant is entitled to, the new trial proceeding never having been prosecuted beyond the service and filing of a notice of intention and other papers, and never having been presented to the trial court, and having been denied by operation of law because not brought to determination within three months after notice of entry of judgment. [1] Under such circumstances the matter of the new trial proceeding cannot be reviewed on an appeal from the judgment, and bill of exceptions to be used on such appeal should not contain anything relative thereto.
The application for a writ of mandate is denied.
All the Justices concurred.