
    NEWMAN v. MALSBY & AVERY.
    November 2, 1896. Argued at the last term.
    Complaint. Before Judge Ereeman. City court of Newnan. July term, 1895.
    After verdict for plaintiffs, defendant moved for a new trial, and the motion was set to be heard on September 30, 1895. Upon that day counsel for plaintiffs moved to dismiss the motion, because defendant had failed to file a brief of the evidence. It appeared that, six days prior to the hearing of the motion, defendant gave to plaintiffs’ counsel a substantial brief of the evidence, except the evidence of the two plaintiffs and three witnesses for the plaintiffs, which by mistake was left out of the brief. Plaintiffs’ counsel failed to call defendant’s attention to the omission, kept the brief of evidence, and made no complaint until the time set for the hearing of the motion. Defendant claimed that the evidence left out of the brief was in fact made out, that he made it out himself, that if it was not with the brief he thought it was, and could not account for its absence. He asked only a short time to complete the brief, stated that it would take only a short time to complete it, and claimed that the brief would have been prepared and completed had plaintiffs’ counsel called his attention to the fact that it was not complete. After the case was tried, the court took a recess for two weeks to enable parties to prepare motions etc. At the end of the two weeks the court met, and movant said he had not quite completed the brief of evidence, and the court took a recess •for two more weeks for it to be got ready; and when the court met at the expiration of said last two weeks, movant had not made an effort to perfect a brief of the evidence from said last recess, and had not called upon counsel for the other side. The court refused to grant defendant further time, and granted the motion to dismiss. Defendant excepted.
   Lumpkin, J.

Under the facts disclosed by the record and which are summarized in the official report, there was no abuse of discretion in refusing to allow further time for perfecting the incomplete brief of evidence, nor in dismissing the motion for' a new trial upon the ground that no legal brief of evidence had been duly filed. Judgment affirmed.

L. M. Farmer, for plaintiff in error.

Freeman & Wright, contra.  