Where a motion for a new trial was made during the term at which a case was tried, and an order passed granting further time to prepare and file a brief of the evidence, and before the time appointed for the hearing of this motion a brief of the evidence had been made out, agreed upon by counsel, approved by *769the court and ordered filed, though not in fact filed, and at the hearing counsel for respondent in the motion argued it upon its merits, making at the time no objection thereto, this conduct amounted to a waiver of the actual filing of the brief of evidence in the clerk’s office; and it was error, after the completion of this argument on the merits, to sustain a motion then made to dismiss the motion for-a new trial for want of such filing. Bailey et al. v. Thornton, 94 Ga. 719, 19 S. E. Rep. 820, citing Cook v. Childers, 94 Ga. 718, 19 S. E. Rep. 819. Judgment reversed.
April 29, 1895.Brought forward from the last term.
Motion for new trial. Before Judge Smith. Marion ■superior court. April 21, 1894. W. D. Craweord, for plaintiff in error. J. H. Lumpkin, contra.