
    McMullen et al. v. Citizens Bank.
    Submitted May 24,
    Decided June 16, 1905.
    Motion for new trial. Before. Judge Mitchell. Colquitt superior court. January 12, 1905.
    
      E. L. Bryan and W. C. McCall, for plaintiffs.
    
      Humphreys & Humphreys, for defendant.
   ITish, P. J.

1. “ In all applications for a new trial the opposite party shall he served with a copy of the rule nisi, unless such copy is waived.” Civil Code, § 5475; Smedley v. Williams, 112 Ga. 114.

2. Such service is essential though the application is to be heard''during the term at which the trial is had. The intimation to the contrary hi Baldwin v. Daniel, 69 Ga. 782, disapproved.

3. Where a rule nisi was granted on a motion for a new trial and ordered served, and the motion set to be heard at an adjourned term of the court at which it was made, to be held more than eighty days after the date of the rule, the court did not, at least, abuse its discretion in dismissing the motion for want of service, there being no excuse for failure of service, nor any evidence of waiver.

Judgment affirmed.

-All the Justices concur, except Simmons, O. J., absent.  