
    Bosworth vs. Hightower.
    A motion for new trial was made during the term when the trial was had; an order was granted allowing the movant forty days within which to prepare a brief of the evidence, and directing that the motion he heard at a stated place and at a time more than forty days from'the date of 'the order; at the specified' time ■ and place the movant failed to appear; the presiding judge heard the motion and refused the new trial:
    
      Held, that no motion to dismiss the motion for new trial having been made by the party excepting, and' the papers being before the judge at the time and place designated for the hearing, there was no error in hearing and determining the same instead of dismissing it, . ■ ■ ■• ,
    March 18, 1884.
    
      New Trial. Practice in Superior Court. Before Judge Stewart. Henry Superior Court. October Term, 1883.
    Hightower recovered a judgment against Bosworth at the October term, 1883, of Henry superior court. Defendant moved for a new trial. Two orders allowing time to perfect the motion for new trial appear in the record the first, dated October 22,1883, allows forty days in which to perfect and file a brief of evidence, and that the motion be heard at Griffin on December 3,1883, and if not heard then, “at such other day and place as the court may determine.” The other order is dated October 23, and allows forty days from the adjournment of the court to perfect the motion and brief of evidence and file the latter. A brief of evidence was agreed upon on November 24, and was approved and ordered filed December 3.
    The bill of exceptions recites that, upon the hearing, defendant was not present or represented that plaintiff’3 attorney moved to dismiss the motion for new trial for want of prosecution; that the court overruled this motion, heard the motion for new trial and overruled it. Defendant excepted, and assigned error because tne court heard the case in vacation; because the court should have dismissed the motion for new trial, and not heard it in the absence of defendant and his counsel; and because the court overruled the motion for new trial.
    Hall & Hunt, for plaintiff in error.
    E. J. Reagan, for defendant.
   Blandford, Justice.

Defendant in error brought his action for words against plaintiff in error, and obtained a verdict and judgment. Bosworth moved for a new trial, which motion was made at the term when the verdict and judgment were rendered, to-wit, at the October term, 18S3. The court granted an order allowing movant forty days within which to prepare a brief of the evidence, and directed that said motion be heard before him on December 3, 1883, at the city of Griffin, which latter time was more than forty days from the time when said order was granted. On December 3, the presiding judge heard said motion and refused the new trial, the movant failing to appear.

It is insisted here that the judge' should have dismissed the motion for the non-appearance of movant, instead of hearing the motion and refusing the new trial, and this is the only error complained of.

There was no motion made to dismiss the motion for new trial. The papers being before the judge at the time and place designated for the hearing, he did right to hear and determine the motion, and the judgment is- affirmed.

Judgment affirmed.  