
    Freeman v. Macon Door, Sash and Lumber Company.
    When, pending a motion for a new trial, the presiding judge entered upon the brief of evidence a qualified approval but never fully approved the brief, his successor committed no error in dismissing the motion at a subsequent term for want of an approved brief; nor did he err in refusing to enter upon the minutes nunc pro tunc an alleged order of continuance which was never in fact passed.
    April 10, 1893.
    Argued at the last term.
    Motion for new trial. Before Judge Fish. Sumter superior court. November term, 1891.
    A verdict against Freeman was rendered at the May term, 1891, of tbe superior court, and he moved for a new trial. The court ordered, by consent of parties, that movant have until July 2, 1891, to perfect his motion and brief of evidence, and that the motion be set for hearing on that day. On that' day there was a disagreement of counsel as to the brief of evidence, and the court passed an order, that “ the within is certified to be correct brief of the oral evidence and of the documentary evidence, except as to the memorandum marked ‘Exhibit A,’ as attached to the motion; there is an issue of fact as to whether or not that paper was tendered in evidence; if tendered there was no objection, and hence the court does not, of his own knowledge, know of the fact as to whether or not it was tendered or admitted. The affidavits of counsel are filed on this July 2d, 1891.” At the next term the motion was called, and the respondent therein moved to dismiss it, upon the grounds, that no legal motion for new trial was pending, the motion having expired before the commencement of the present term of court, by limitation of the time fixed for the hearing; that there was no legal brief of evidence of file, said brief not being properly and positively approved, and not consented to or agreed to; that the grounds of the motion had never been approved or certified as true; and that what purported to be the brief of evidence was never filed until after the expiration of time allowed by order of the court. Movant asked 'to have an order continuing the case to term time entered nunc pro tunc. Judge Fort, the predecessor of Judge Fish, stated: “This motion was made in due time, and at the hearing the counsel disagreed on the brief of evidence; there was a dispute as to the admission of certain written evidence therein specified, plaintiff’s counsel contending that the evidence was admitted without objection, and defendant’s counsel denying that it was ever tendered, or that he had any notice that it was offered. The court had not had his attention called to the matter, and therefore did not in fact know which contention was correct; hence the court did not approve this portion of the' brief, but indicated his purpose to' refer this question of fact to a jury, and to prepare an order accordingly. This course was objected to by plaintiff’s counsel, and they insisted on a hearing to show this was erroneous, and on a motion to dismiss the motion for new trial because there was no brief of evidence as required by law. No order was passed and no consent was made by plaintiff’s counsel to continue to another day, nor was any waiver made of their rights-to demur or dismiss. It was the practice of the court to pass a final order covering all orders for a continuance, when the motion was finally determined in vacation. No order was passed because the matter was-considered still pending in this way, and I intended, unless otherwise advised, to make an order continuing-case into term, and referring the issue of fact-to a jury. Before term my incumbency on the bench ceased.”
   Judgment affirmed.

The judge presiding refused to allow the order to be entered and dismissed the motion.

Hudson & Blalock, for plaintiff in error.

Hinton & Cutts, contra.  