
    25380.
    Vinson v. The State.
    Decided April 8, 1936.
   MacIntyre, J.

1. The brief of evidence and the amended motion for new trial were not served on the solicitor five days before the hearing, as provided by the order taken in term, extending the time within which a brief of evidence and the amended motion might be filed; and upon the hearing of the motion in vacation, after having been thrice continued, there was no such abuse of discretion by the court, in dismissing the motion for new trial, as would require a reversal of the judgment. Lambert Hoisting Engine Co. v. Bray, 127 Ga. 452 (56 S. E. 513); Drew v. Drew, 50 Ga. App, 555 (179 S. E. 194) ; Bryant v. Gray, 105 Ga. 483 (30 S. E. 732) ; Eason v. Americus, 106 Ga. 179 (32 S. E. 106).

2. “As the statute [Code of 1933, § 70-301] is imperative, not mentioning any excuse Whatever, it contemplates that the movant can and must comply with its terms, irrespective of whether the official stenographer of the court has written out his report of the evidence or not. And hence the stenographer’s omission or failure so to do is no legal reason for delaying' the filing beyond the time granted by the court’s special order; certainly not, unless that reason is, under all the circumstances, satisfactory to the presiding judge.” Boatwright v. State, 91 Ga. 13 (16 S. E. 101).

3. “When the time for filing in vacation a brief of evidence to accompany a motion for a new trial is expressly limited by an order of the court, and the brief is not filed within that time, it is not erroneous to dismiss the motion; nor will this court reverse the action of the trial judge in refusing to accept as a sufficient excuse for not duly filing a brief of evidence the failure of the circuit stenographer, from illness or any other cause, to write out the evidence.” Western & Atlantic Railroad Co. v. Callaway, 111 Ga. 889 (36 S. E. 967).

Judgment affirmed.

Broyles, C. J., and Guerry, J., concur.

J. A. Drake, C. A. Drake, for plaintiff in error.  