
    12330.
    Neal v. Mathews.
    Decided December 14, 1921.
    Action for damages; from Fulton superior court — Judge Ellis. December 23, 1920.
    
      Lowndes Calhoun, for plaintiff in error. W. W. Gaines, contra.
   Stephens, J.

1. A bill of exceptions will not be dismissed upon the ground that it was not tendered to the presiding judge within the time required by law, even though it appears that it was not certified within such period, where it-recites that the plaintiff in error tenders the bill of exceptions within the required time, and there is nowhere in the certificate of the trial judge a denial of this recital. Cole v. Western Union Tel. Co., 23 Ga. App. 479 (98 S. E. 407).

2. Where, upon the filing of a motion for a new trial, the movant is by proper order given until the “ actual hearing ” of the motion to present for approval and filing a brief of the evidence, the motion will not, when the case is “ called by the court for a hearing,” be dismissed at the instance of the respondent, upon the ground that the brief of the evidence has not been presented for approval within the time allowed, since it does not appear that the brief of the evidence was not presented before or at the time of the “ actual hearing.” It does not necessarily follow that the “ actual hearing ” was had when the case was called by the court for a hearing;” and where it appears that when the court overruled the respondent’s motion to dismiss the motion for a new trial the movant “ then presented a brief of the evidence to the court and the same was approved,” it will be presumed, in the absence of any affirmative proof as to the time of the “ actual hearing,” that the brief of the evidence was presented within the time allowed by law, even though it appears that the date of the approval of the brief of the evidence was five days subsequent to the date upon which the motion was called by the court for a hearing.” See, in this connection, Civil Code (1910), § 6089; King v. Sears, 91 Ga. 577 (9) (18 S. E. 830). The respondent’s motion to dismiss the motion for a new trial was properly overruled.

3. This being the first grant of a new trial, and the verdict as rendered not being demanded as a matter of law, the judgment granting the motion will not be disturbed.

Judgment affirmed.

Jenkins, P. J., and Hill, J., concur.  