
    32473.
    Shepherd v. The State.
   MacIntyre, P. J.

“An order passed in term, setting the hearing of a motion for new trial in vacation, in effect keeps the term, relatively to that particular case, open until such motion shall have been decided. Herz v. Frank, 104 Ga. 638 (30 S. E. 797). So where, by an order passed in term, the hearing of a motion for new trial is set for a particular day in vacation, that day, relatively to such motion, is in legal contemplation a continuance of the term at which the order was granted; and if the motion is not, at the time thus fixed, either heard on its merits or dismissed, it must by express written order be continued to some subsequent day, or else it will go over to the next term of the court in which it was made. A., K. & N. Ry. Co. v. Strickland, 114 Ga. 998 (41 S. E. 501).” Blakely Hardwood Lumber Co. v. Reynolds Bros. Lumber Co., 173 Ga. 602 (160 S. E. 775). “Unless it be made to appear that the failure to hear the motion or to file a brief of the evidence was the fault of the movant, the motion would stand for hearing at the next . . term.” James v. John Flannery Co., 6 Ga. App. 811 (66 S. E. 153). An amendment together with a brief of evidence submitted for approval during the next term is within time and in compliance with the orders of court continuing the hearing of the motion, and the court erred in sustaining the motion to dismiss the motion for a new trial.

Decided July 15, 1949.

Judgment reversed.

Gardner and Townsend, JJ., concur.

Raymond W. Martin, for plaintiff'in error.

Wright Lvpjord, Solicitor-General, contra.  