
    No. 44.
    Charles G. Turner, plaintiff in error, vs. Edward E. Rawson, defendant.
    [1.1 The 61st rule of practice, requiring in evmy application for a new trial, a a brief of the testimony in the cause to be filed by the party applying for such new trial under the revision and approval of the Court, is imperative, and upon failure to comply, the motion will be dismissed at the hearing.
    Motion for new trial, in Pike Superior Court, decided by Judge Floyd, February Term, 1848.
    The defendant in error moved in the Court below, to dismiss, the rule nisi granted at a previous term, for the reason, that no brief of the testimony had been filed under the sanction of the Court, nor agreed upon by the parties. A brief of testimony was filed, and on the 21st of August, 1S4-7, defendant in error “ acknowledged notice of the brief of the testimony.” The Court dismissed the rule nisi, and this decision is alleged to be erroneous.
    Arnold, Martin, Green, and Gibson & Hammond, for plaintiff.
    Arnold, for the plaintiff in error, cited-
    
      2 Kelly. 1. Dudley, 47, 78. 2 Tidd, 910. 1 M.& S. 576. 1 Burr. 390. Cowper, 597. 2 W. Bl. 1221. 1 Kelly, 463, 254. 3 Ibid, 221. Prince, 421, 442.
    Baile?, for the defendant.
   By the Court.

Lumpkin, J.

delivering the opinion.

This was a motion for a new trial, in Pike Superior Court. It was made at the August term, 1847, and dismissed at the ensuing term, on account of the failure of the applicant to file a brief of the testimony, as required by the 61st rule of practice. It is conceded that no brief -was filed under the revision and approval of the Court. It is contended, however, that a brief of the testimony was lodged in the Clerk’s office, after having been submitted to the inspection of the opposite counsel. The record does not show that a brief of the whole testimony ever was filed. But even if it did, there being no evidence that it was agreed upon by the opposite counsel or approved by the Court, the motion was properly dismissed. Petty and others vs. Mahaffy, 3 Kelly, 217. 
      
      Note. — See also Charles Hartridge vs, D. & A. Wesson, 4 Ga. Repts. 101.
     