[Murphey filed his petition for mandamus against the Educational Board of Burke County, alleging that he was county school commissioner in 1871, and there was a balance due him for his services of $383.00; that the act of 1874 appropriated all school funds then or thereafter on hand to the payment of the school debts of 1871; that defendants, instead of using the fund to pay him, diverted it to support schools; that they had then in hand $716.00 school fund of 1880, not needed for schools of that year; that this, as all other school funds, were subject to his claim, and that defendant refused to pay him.
*858The Board answered that plaintiff’s claim had never-been audited by the school board of 1871; that in 1874 the grand jury ordered the board to hold up $1,000 for school claims of 1871, and devote the rest of the fund'to schools, which the board did; that plaintiff waived any claim on the $1,000 ; that such waiver operates as a payment of his claim; that the grand jury, at May term, 1875, recommended that the act of 1871 should no longer apply in Burke.
The jury found for the plaintiff $342.50. Defendants made amotion for new trial, because the verdict was contrary to law, evidence and the charge of the court. The rule nisi was made returnable instanter, or as soon as counsel could be heard, and the order provided that service of the rule should be made on plaintiff or his counsel. The motion was called for a hearing; but counsel for respondent objected, on the ground that there had been no service or waiver thereof, and refused to then acknowledge service. Counsel for movant, took an order providing that “ said motion be argued in vacation before Judge Snead, at such time as' may be agreed upon by counsel, either side having a right to force a hearing of said motion by giving at least ten days’ notice.to the opposite side, of the time and place of hearing.”
Court adjourned July 3, 1882. On July 12, movants’ counsel served on counsel for plaintiff notice of a hearing to be had on July 25. Learning that a copy of the motion for new trial had not been served, counsel for movants wrote to the judge asking a continuance. Plaintiff did not live in Burke county, and his counsel were then absent, and could .not be served,. Neither counsel appeared, and no order was taken, on the 25th. On August 14, counsel for plaintiff was served by the sheriff with a copy of the motion. for new trial and rule nisi. Movants’ counsel served counsel for plaintiff with another notice of a hearing to be had on-October 12th;, at that time, objection was made to the hearing, and the judge refused to act on the *859motion, saying he -would, hear it at the next term. At that term, counsel for plaintiff moved to dismiss the motion for new trial, on the ground that it had lapsed. This motion was overruled; the motion for new trial was granted; and plaintiff excepted.]