
    [No. 1530.]
    APRIL FOOL GOLD MINING AND MILLING COMPANY, a Corporation, Appellant, v. T. E. DULA, et al., Respondents.
    Practice — Stipulations op Counsel. Stipulations by counsel in relation to matters under their control are binding, but a stipulation ignoring the positive requirements of law will be disregarded.
    Idem — Idem—Appeal—Statement on Motion por New Trial. Under section 197 of the civil practice act, providing for a statement on motion for a new trial, and that the statement thus used, in connection with pleadings and the evidence, and the minutes of the court read or referred to on the hearing, shall constitute the papers to be used on appeal, where the statement did not contain any of the testimony, and the documentary evidence was not referred to nor identified by the certificate of the district court, a stipulation that such papers should be treated as properly certified for purpose of appeal will be disregarded.
    Appeal from the District Court of the State of Nevada, Lincoln county; A. E. Cheney, District Judge, presiding:
    Action by the April Fool Gold Mining and Milling Company against T. E. Dula, and others. Judgment for defendants. From an order denying a new trial, plaintiff appeals.
    Affirmed.
    The facts sufficiently appear in the opinion.
    
      Henry Rives and J. R. Judge, for Appellant.
    
      
      F. B. McNamee, George S. Sawyer and T. J. Osborne, for Respondents.
   By the Court,

Belknap, C. J.:

The district court overruled a motion for new trial upon the grounds that the statement did not contain any of the testimony, nor was the documentary evidence referred to and made a part of the statement, and testimony taken by a reporter, identified by the certificate of the district judge.

No question is made touching the correctness of the ruling, but its effect is sought to be avoided by a stipulation entered into by counsel in this court that the documentary evidence and the testimony taken by the reporter shall be treated as having been identified for the purposes of this appeal. The legal effect of the stipulation was not discussed at the bar, but the court of its own motion must suggest reason why it should not be considered.

Section 197 of the civil practice act provides for the statement to be used upon motion for new trial, and indicates the several proceedings by which it may be perfected. When the statement has been perfected, it is provided that * * * the statement thus used, in connection with such pleadings, depositions, documentary evidence on file, testimony taken by a reporter and the minutes of the court as are read or referred to on the hearing, shall constitute, without further statement, the papers to be used on appeal from the order granting or refusing a motion for new trial.”

Under this provision the district courts and the supreme court act upon the same statement. The district courts primarily have jurisdiction of the statement upon motion for new trial, and their records made in accordance with the provisions of the statute cannot be altered by this court. Stipulations by counsel in relation to matters under their control are binding, but a stipulation ignoring the positive requirements of law will be disregarded.

Judgment affirmed.  