Opinion by

The appellee objects to the bill of exceptions of what occurred on the first trial, when the verdict was adverse to him, but a new trial was awarded of which the appellant complains, on the ground that the bill is certified by two bystanders.

Buckner and Bullitt’s Civ. Code (1876) § 337, Subsec. S, is in this language: “If the judge who presided at the trial do not preside when a motion for a new trial is overruled, the bill of exceptions may be certified by bystanders, and be controverted and maintained, pursuant to the provisions of subsections 3 and 4 of this section.”

When the motion for a new trial was sustained, the judge, who presided at the trial, did preside, and as the case authorizes the bill of exceptions to be certified by bystanders only where the judge does not preside when the motion for a new trial is disposed of, the bill of exceptions in this case is without legal sanction.

Wherefore the judgment is affirmed.