
    Kehely v. Atlanta Consolidated Street Railway Co.
    Argued December 15,
    Decided December 21, 1897.
    Motion for new trial. Before Judge Berry. City court of Atlanta. May term, 1897.
    
      Arnold & Arnold, for plaintiff.
    
      N. J. & T. A. Hammond, for defendant.
   Lewis, J.

1. Where a motion for a new trial was filed during the term at which the verdict was rendered 'and within thirty days from the date of the verdict, and at the same time a paper purporting to be a brief of the evidence, though not so designated in terms on the paper, but treated as such by the judge in the rule nisi granted, was also filed, there was no error at the hearing, which was had after the expiration of the term at which the trial was had, in refusing to dismiss the motion for new trial on the ground that the paper purporting to be a brief of the evidence was not so designated, nor on the ground that the rule nisi was returnable more than thirty days from the date of the verdict, and at a date subsequent to the adjournment of the term ; and especially is this true where the paper so filed was subsequently approved by the judge as a correct brief of the evidence, and the hearing was from time to time continued by consent of both parties, and no motion to dismiss made until the motion for new trial was finally heard.

2. This case falls within the well-settled rule, that the discretion of the trial judge in granting a first new trial will not be controlled.

Judgment affirmed.

All the Justices concurring.  