motion for a new trial may be used on appeal from a final judgment, equally as on appeal from tbe order granting or refusing a new trial. Tbe statement ought not to bave been beard or used on tbe bearing of tbe motion for a new trial, by reason of tbe objections thereto above stated, and as tbe same still exist, it can not be used on tbe appeal from tbe final judgment.
It appears from tbe order denying tbe motion for a new trial, tbat tbe court made tbe following order, to wit: " Tbat tbe defendant" (now appellant) "shall bave until tbe first day of October next to appeal from tbe judgment so modified, and also from tbe order overruling tbe motion for a new trial." Tbe court can not extend tbe time provided by statute within which to appeal from an order granting or refusing a new trial. An appeal from an order in such case must be taken within thirty days from tbe time tbe order was made, bence tbe order above cited was error and of no effect.
Tbe appeal from tbe order overruling tbe motion for a new trial is dismissed and tbe statement used on tbe motion for a new trial stricken from tbe record in this action.
On Petition for Prehearing.
We bave examined this petition and considered tbe grounds therein stated and tbe authorities cited by tbe counsel for petitioner, but fail to discover any good reason why we should depart from tbe doctrine laid down by this court in tbe opinion now on file in this action, on motion to dismiss tbe appeal from tbe order overruling tbe motion for a new trial, and to strike out statement used on tbe bearing of tbe motion for a new trial.
Tbe rehearing is denied.