
    Duncan v. Duncan et al.
    
    July 6, 1916.
    Petition; from Ha'll superior court. Motion to dismiss.
    
      A. C. Wheeler, C. N. Davie, and H. H. Dean, for plaintiff in error.
    
      W. A. Charters and H. H. Perry, contra.
   Per Curiam.

1. Where a party litigant in the trial court made a motion for new trial, and, while it was pending, sued out a direct bill of exceptions to this court, assigning error upon the final decree, the writ of error will be dismissed on motion. The case can not be brought to this court while it is pending in the trial court.

2. While the record shows that the motion for new trial was made before the bill of exceptions was sued out, and that it was dismissed some time after the case had been brought to the Supreme Court by writ of error, the order of dismissal can not be altered or shown by affidavit to have been one entered nunc pro tunc, so as to have the effect of a dismissal made before the bill of exceptions was sued out. Kelly & Jones Co. v. Moore, 125 Ga. 382 (54 S. E. 118).

Writ of error dismissed.

All the Justices concur.  