
    Bailey et al. v. Thornton.
    Where, during the term at which a case was tried, a motion fora new-trial, with an unapproved brief of evidence attached, was handed to the judge, who in open court approved the grounds of the motion, granted a rule nisi, which was duly served, and also passed an order setting the hearing of the motion at a future time and allowing movant until then to have the brief of evidence approved, which was afterwards done, and the motion, after being several times continued, was finally heard on the merits, counsel for both sides appearing, and there being no motion to dismiss, the court reserving its decision and giving respondent’s counsel leave to file an additional brief upon a question of law involved, it was error in the court, upon a mere suggestion contained in this brief, to dismiss the motion simply because it and the brief of evidence were not marked filed in office by the clerk. Under the facts stated, the actual filing in the clerk’s office was waived, and the motion should have been decided on its merits. Cook v. Childers, this term, ante.
    
    April 30, 1894.
    Argued at the last term.
    Motion for new trial. Before Judge Smith. Wilcox superior court. March term, 1893.
    W. L. Grice and E. H. Williams, for plaintiffs in error. Busbee & Crum, contra.
    
   Judgment reversed.  