dict. Judge Francis retired from the bench without acting upon the motion, but his successor in office, by an order made April 29, 1890, denied the motion, and on the same day, on plaintiff’s application, judgment for costs was entered in favor of the defendant. Plaintiff appealed to this court from such judgment, and, the case being on the calendar of this court, at the October term, 1890, the appeal was dismissed on motion of appellant, without prejudice. At a term of this court held in October, 1891, the case reappeared upon the calendar of this court, and counsel for the respondent, upon proper notice, made a preliminary motion to purge the record by striking therefrom a bill of exceptions found among the papers certified to this court from the court below. Counsel were heard upon the motion, and also upon the merits of the case, and a decision of the motion was reserved to be disposed of later. It appears by the record, and is conceded, that no attempt was ever made to settle a bill of exceptions or statement in the action until subsequent to the dismissal of the appeal in October, 1890, and that the first move in that direction was made by obtaining an order from the district court to show cause why time for settling a pill of exceptions should not be extended. This order bears date April 3, and was returnable April 21, 1891. The order was based upon the affidavit of plaintiff's attorney. The only features of the affidavit which have any posssible bearing upon the matter of plaintiff's laches and default in not applying sooner for the settlement of a bill or statement, or which have any tendency to show cause for an extension of time, are the following features: "That afterwards this deponent discovered that he had committed an error in causing said action to be placed upon the calendar of the supreme court, without first having a bill of exceptions settled by the judge of said district court; that such error was occasioned by deponent’s misconstruction of the law in relation to bills of exception upon appeal to the supreme court. Deponent further prays that plaintiff may be relieved from the consequences of the error made by this deponent as aforesaid, and that the court make an order extending the time in which to settle a bill of exceptions for an appeal to the supreme court in the above entitled action.”
