THE COURT.
[1] Appellant by motion sought an order for the diminution of the record on appeal so as to include therein a certain affidavit alleged to have been considered in support of appellant's motion for a new trial.
It appears without dispute that the affidavit in question was served and filed more than ten days after the time permitted by section 659a of the Code of Civil Procedure for the filing of affidavits on motions for a new trial, and, so far as shown, no extension of time was granted. Under such circumstances consideration of the affidavit by the trial court would have been improper ( Crofford v. Crofford, 29 Cal.App. 662 [ 157 P. 560]; Terry v. Lesem, 89 Cal.App. 682 [ 265 P. 523]), and we cannot presume that such was the case (2 Cal. Jur., Appeal and Error, sec. 499, p. 852).
The motion is denied.