
    Shea v. Kelly.
    A verdict having been rendered against the defendant in an action, he presented to the judge on September 22d, 1894, a motion for a new trial, who thereupon granted a rule nisi, returnable “ on such day as may be agreed on by counsel, or fixed by the court hereafter, on two days notice to counsel.” On November 17th, 1894, the judge notified movant’s counsel that he would hear and determine the motion on November 20th. This notice was not received by respondent’s counsel until November 19th. When the motion was called for a hearing on the day set by the judge, it appeared that there had been no service upon the respondent of the rule nisi, nor any acknowledgment or waiver of service, and the latter then moved to dismiss the motion for a new trial for want of such service. The court reserved its decision on the motion to dismiss until the 23d of November, and then sustained that motion. Held, that under the facts stated there was no abuse of discretion in dismissing the motion for a new trial, although on the 21st of November service of the motion and rule nisi had been made upon the respondent.
    July 29, 1895.
    By two Justices.
    Motion for new trial. Before Judge Boss. City court of Macon. September term, 1894.
    Gustin, Guerry & Hall, for plaintiff in error.
    Arthur Dasher, contra.
    
   Atkinson, Justice.

Under tbe facts of tbis case, tbe court went to tbe extreme of liberality in the allowance to tbe movant of ample time in the preparation of his motion for a new trial, and for service of the same. Slight diligence upon his part would have so perfected the motion as that it could have been legally determined upon its merits. Upon the date upon which it was assigned for a hearing, under the order granted in term, the rule nisi had not been served, and no legal or sufficient reason was assigned for the failure to serve it. The trial judge, under these circumstances, was authorized to refuse to entertain it. Having exercised, as we think, a wise discretion in regard to it, Ms judgment will not be disturbed. Leges vigilantibus, non dormientibus, subveniunt.

Judgment affirmed.  