Opinion of the Court-Leonard, J. the residence, we do not deem it necessary to decide. We cannot presume that plaintiff did not know the defendant's residence, and, without that presumption, the return would not show a legal service, even though we should conclude that the affidavit contained facts sufficient to justify the court in deciding that service could not be made under section 1092. There is, however, in the return, an affidavit of plaintiff's attorney to the effect that on the seventeenth day of October, 1881, three days after the date of order for publication was made, he deposited in the postoffice at Candelaria, Nevada, a copy of the summons attached to a certified copy of the complaint in said action, postage fully prepaid, directed to the president and trustees of the Victor Mill & Mining Company, at San Francisco, California. But that neither justified the order of publication nor aided the attempted service. The place of residence was not stated in the affidavit, and the court did not order the deposit in the postoffice. Without an order so to do, the deposit was a mere gratuitous act on the part of the attorney. It did not cure what had already been done. Again, the affidavit must show that a cause of action exists against the defendant. The complaint filed stated a cause of action, but the affidavit did not, and the complaint was not sworn to. Besides, the order for publication shows upon its face that the court did not consider the complaint in making the order. Nor could it have done so, in any event, since it was not incorporated in the affidavit. These are the only statements of a cause of action in the affidavit, viz., "that said action is brought to recover $273 due from the defendant to the plaintiff, on account, for work and labor done for defendant at Candelaria, Nevada, between March 15, 1879, and March 15, 1880, a voucher or statement of which is attached to my complaint herein, and interest on the same sum." That the amount claimed was "due from defendant to plaintiff" is simply a legal conclusion, and there is no allegation or statement that the work was done at the defendant's request. It may have been done voluntarily on the plaintiff's part. At any rate, the contrary does Points decided. not appear from the affidavit upon which the court acted. (Huguet v. Owen, 1 Nev. 466; McManus v. Ophir S. M. Co. 4 Nev. 16; State Tel. Co. v. Patterson, 1 Nev. 150.) Our opinion is that the order for the publication of summons was void, and that the court acquired no jurisdiction of the person of the defendant in said action. The judgment rendered therein is annulled. [No. 1104.] D. C. SIMPSON ET AL., RESPONDENTS, v. CLEM OGG, NOTICE OF APPEAL-The notice should state that appellants do appeal, not that FINDINGS OF FACT SHOULD BE EMBODIED IN THE STATEMENT-NEW TRIALAPPLICATION FOR, HOW MADE-When a new trial is applied for on the grounds of insufficiency of evidence to justify the findings of fact, conclusions of law, and judgment of the court, and that the same were against law; and on the further ground of errors in law which occurred at the trial, the application must be made upon statements prepared as the statute requires. (Comp. Laws, 1256, 1257.) IDEM STIPULATION OF COUNSEL NOT IN THE STATEMENT-A stipulation of counsel, entered into after the statement on motion for new trial has been filed, which is not identified, or designated by the judge, or clerk, as having been read or referred to on the hearing of the motion cannot be considered in the appellate court. Stipulation, also, held insufficient on other grounds. JUDGMENT ROLL-ERRORS IN, WHEN NOT REVIEWABLE-When an appeal is taken from an order denying the motion for a new trial only, the errors, if any, appearing in the judgment roll cannot be reviewed by the appellate court. APPEAL from the District Court of the Third Judicial District, Esmeralda County. The facts sufficiently appear in the opinion. T. H. Wells and A. C. Ellis, for Appellants : Notice that appellants will appeal is sufficient. (Comp. M. A. Murphy and A. W. Crocker, for Respondents: I. The notice of appeal does not comply with the pro Argument for Respondents. visions of the statute. (1 Comp. Laws, 1392.) The acts required by the statute must be strictly complied with. (Warner v. Holman, 24 Cal. 228.) II. The bond filed by appellants is not such a bond as is required by statute. (1 Comp. Laws, 1402-3.) The sureties are not severally bound upon this bond. False representations made by the principal * * * will discharge the sureties. (Chamberlain v. Brewer, 3 Bush, 561; Shrackelford v. Handley, 10 Am. Dec. 753; Schuylkill Company v. Copely, 67 Penn. St. 386; 3 Parson on Contracts, 414, 415, 416 and notes; Snyder v. Findley, 1 Am. Dec. 193.) To constitute an appeal three things are necessary: First, filing a notice; second, service of same; third, filing an undertaking. (Bryan v. Berry, 8 Cal. 133; Franklin v. Reiner, 8 Cal. 340; Whipley v. Mills, 9 Cal. 641; Hastings v. Halleck, 10 Cal. 31.) III. This being an appeal from an order overruling a motion for a new trial, the appellate court is confined in its investigation to the record used in the court below; there being no record nor statement used in the court below, there is none in this court. (Caldwell v. Greely, 5 Nev. 262; Walls v. Preston, 25 Cal. 61; Hutton v. Reed, 25 Cal. 488; Barrett v. Tewksbury, 15 Cal. 356; Reynolds v. Lawrence, 15 Cal. 360; White v. White, 6 Nev. 23; Lockwood v. Marsh, 3 Nev. 138; Irwin v. Samson, 10 Nev. 282; McCausland v. Lamb, 7 Nev. 240.) By the Court, LEONARD, J.: Prior to the oral argument in this case a preliminary motion was made to dismiss the appeal, for various reasons stated. The motion and the case were submitted together. We shall not stop to consider at length the objections urged against the notice of appeal and the undertaking on appeal. It is, however, proper to state that they are faulty in many particulars. It is stated in the notice that the defendants will appeal, when it ought to state that they do appeal. Again, the undertaking was executed and filed more than a year after judgment, and consequently the judgment could Opinion of the Court-Leonard, J. not be appealed from. It was executed, however, before the notice of appeal was served and filed. One of the recitals in the undertaking was that, on the fifth of July, 1880, plaintiff's obtained judgment against defendants for the sum of $1,900, with interest thereon then accrued in the sum of $111, and interest on said sum of $1,900 from date of judgment until paid, at the rate of ten per cent. per annum, while the fact is that the judgment gave interest on $2,011 from date of judgment until paid. Another recital was to the effect that defendants were desirous of appealing to this court from said judgment, and every part thereof, and from the order denying a new trial, and were desirous of having execution stayed pending such appeal. The undertaking was sufficient in amount to stay execution, but the appeal is from the order denying the motion for new trial only; and the sureties "undertake and agree to and with the said plaintiffs that if said appeal be perfected the said defendants will pay to the said plaintiff's the amount of said judgment, principal, interest, and costs, and all accruing costs and damages in said cause, for which they may obtain judgment against said defendants in case said judgment be affirmed, wholly or in part, or said appeal abandoned or dismissed. * In view of the fact that the sureties bound themselves to pay only in the event that said appeal-that is to say, an appeal from the judgment and order—should be perfected; and the further fact that an appeal was taken from the order alone, there is a question, at least, which we do not decide, whether they are bound by this undertaking, since they are liable to the extent, and in the manner, and under the circumstances. pointed out in their obligation, and no further." (Carson Opera House Association v. Miller, 16 Nev. 328.) * Again, the findings of facts were not inserted in the statement, although the judge certified thereon that he referred to them in deciding the motion. The court has decided on several occasions that findings of fact cannot be considered on appeal unless they are embodied in the statement of the (Alderson v. Gilmore, 13 Nev. 84.) Since the find case. Opinion of the Court-Leonard, J. ings were not embodied in the statement, it is questionable, at least, whether the judge below had the right to refer to them in deciding the motion, or whether we can consider them on this appeal, although they were referred to by him. It being unnecessary, we do not decide the question, but content ourselves by saying that, at least, the better practice is to embody the findings in the statement. But the application for a new trial was made on the grounds of insufficiency of evidence to justify the findings of fact, conclusions of law, and judgment of the court, and that the same were against law; and on the further ground of errors in law which occurred at the trial. Applications for new trial for these causes must be made upon statements prepared as the statute requires. (Comp. Laws, 1256, 1257.) There is in the transcript what purports to be a statement on motion for a new trial. Thereon is an acknowledgment of service by one of the plaintiff's attorneys; but it has no accompanying certificate of the parties themselves, or their attorneys, that it has been agreed to and is correct, or any certificate of the judge that it has been allowed by him and is correct, as the statute requires; nor does the clerk of the court certify that no amendments to the statement have been filed. There is, then, no statement which we can consider, unless it becomes such by reason of the stipulation contained in the transcript, signed by counsel of the respective parties, which is as foilows: "It is hereby stipulated and agreed, by and between the parties plaintiffs and defendants in the above entitled cause, by their respective counsel, that the statement this day filed by the defendants in said cause, and served upon counsel for plaintiffs, is hereby agreed to as constituting the statement on motion for new trial by defendants in said cause, and that the bill of exceptions therein contained shall be settled and certified by the judge of said court whenever he shall again be in Aurora, Nevada; that said statement on motion for a new trial shall be the statement on appeal in said cause, if either party shall appeal from the order of said court granting or refusing a new trial of said cause, subject to such |