Burton v. State

Russell, J.

The final order in the ease, to which the exception relates, is as follows: “It appearing that no brief of the evidence has been prepared and filed in the within case, and that no service of tins motion was made on the solicitor, it is hereby ordered that the motion for new trial be and the same is hereby dismissed.” Nothing in the record contradicts the recital of facts contained in this order, though the order originally continuing the motion provided that the brief of the evidence should be prepared and presented for approval at the time set for the hearing, and filed in the office of the clerk within 10 days thereafter. Held, that if the brief of evidence had been prepared and presented in time, the fact that it was not lodged in the office of the clerk for filing would not have been ground for dismissal of the motion, but that, as the record nowhere discloses that it was ever prepared or presented, the judgment dismissing the motion on the day §et for the hearing will not he reversed. . Judgment affirmed.

Decided August 4, 1911.

Motion for new trial;.from city court of Millen — Judge Davis. April 22, 1911.

Anderson & Babb, for plaintiff in error. James A. Dixon, solicitor, contra.