The opinion of the court was delivered by

— The notice of filing the statement of facts herein which was served on the respondent failed to designate a place at which the appellant would apply to the court or judge who tried the cause or rendered the judgment complained of, to settle and certify said statement of facts. The notice, therefore, omitted one of the positive requirements of the statute then in force (Code Proc., § 1422), and consequently was wholly ineffectual for the purpose intended; and the respondent was at liberty to disregard it entirely, which it appears he did. It follows that the statement of facts was in effect settled and certified without notice to the respondent, and hence cannot be considered by this court.

The motion of respondent to strike the statement from the record must, therefore, be granted. And as the cause is one of equitable cognizance, and the facts upon which the judgment was based not being properly in the record, the judgment must be affirmed, and it is so ordered.

Dunbar, C. J., and Stiles, Scott and Hoyt, JJ., concur.