On the 31st day of January, A. D. 1909, by motion of the plaintiffs (defendants in error), the appeal from the justice, court was dismissed, and the cause remanded to said court, to be proceeded with the same as if no appeal had been taken. On January 22, 1909, the plaintiffs filed a motion for a new trial. On February 6, 1909, said motion was overruled, at which time the court allowed plaintiffs 60 days to make and serve case-made, 10 days for amendments, and 5 days for settling same.

It is urged that, as the motion for a new trial was not necessary, the case-made should have been settled within three days from the dismissal of the appeal, or the order extending the time *447 therefor should have been made within such time. This contention seems to be correct. Springfield Fire & Marine Ins. Co. v. Gish, Brook & Co., 23 Okla. 824, 102 Pac. 708.

In Powell et al. v. Nichols, 26 Okla. 734, 110 Pac. 762, it was held by this court that the filing and determining of a motion for a new trial of a contested question of fact, not arising upon the pleadings, but upon a motion, is unnecessary to authorize this court to review the order made upon such hearing. As the question sought to be reviewed in this case could only be preserved by a case-made, or a bill of exceptions, it is not properly before this court.

The proceeding in error must be dismissed.