I think it does affirmatively appear from the record in this case that no brief of evidence was filed with the motion for new trial. Error is assigned in the bill of exceptions to the judgment of the court in overruling the defendant's motion to dismiss the plaintiff's motion for new trial, and the motion of the defendant to dismiss the plaintiff's motion for new trial is specified in the bill of exceptions as a part of the record to be sent up in the case, and the written motion to dismiss the plaintiff's motion for new trial was sent to this court as a part of the record in the case. Ground 2 of the motion to dismiss the plaintiff's motion for new trial is "that said motion for a new trial, as amended, be dismissed, for the reason that no brief of evidence has been filed in this case or waived." The bill of exceptions ends with the following statement and assignment of error: "And now within the time provided by law comes B. H. Cox, plaintiff in error, and assigning error on all of the rulings complained of, including the refusal of the court to sustain his motion to dismiss the motion for a new trial and the granting of a new trial, as being contrary to law, tenders this bill of exceptions and prays that the same may be certified, as provided by law, and transmitted to the Court of Appeals of the State of Georgia in order that the alleged errors may be considered and corrected." I think it clearly appears from the record in this case that no brief of evidence was ever filed with the motion for new trial, and in fact it is not even contended by counsel for the defendant in error that any brief of evidence was filed with the motion, but he undertakes to justify the judge in the grant of a new trial on the erroneous theory that the motion as amended was a motion to set aside the judgment instead of being a motion for a new trial, whereas the prayer in the amendment to the motion was that theverdict be set aside, a consideration of which necessarily requires a brief of the evidence. Of course, it is obvious from the record that this grant of a new *Page 861 trial on such a theory can not be sustained, as pointed out in my dissent to the original opinion in this case. I am still of the opinion that it was error for the judge to grant a new trial. Therefore, I dissent from the decision of the majority of the court.