The record shows that plaintiff’s appeal is based upon a mistake. Pie has appealed from an order granting the defendant’s motion for a new trial. No attack is made upon the merits of the order. The only question attempted to be raised is the jurisdiction of the district court to make it. His sole assignment is that “the court erred in making the order vacating the verdict and ordering a new trial, on the ground and for the reason that there was no settled statement of the case in said cause at the time said order was made and entered.” The objection that a statement was not settled is not sustained by the record. The appellant’s abstract shows that the attorneys stipulated the contents of the statement, and that it might be settled by the court in accordance therewith on August 10, 1905, and that the motion for a new trial might be heard at the same time. The appellant’s abstract contains no order settling the statement, but the order granting the new trial, which was made after a hearing and is dated on August 10th, recites, among other things, that it is based on the statement of case. As to whether the plaintiff, upon his own showing, could now take advantage of the omission of the certificate, we express no opinion; for the defendant had presented an amended abstract, which contains the judge’s order settling the statement, regular in all respects and bearing date August 10, 1905, the day motion was heard.

Order affirmed.