PlaintifE in error was convicted on November 2, 1922. On November 23, 1922, a motion for a new trial was filed, and on January 5, 1923, the date set for the hearing of said motion, the judge passed the following order: “ It appearing to the court that this is the date set for the hearing of the motion for a new trial in said case, and it appearing to the court that the movant is not present in person or by attorney prosecuting said motion, and that no brief of evidence has been prepared and filed in said ease, it is the judgment of the court that said motion for new trial be and the same is dismissed, and it is ordered that *669the judgment and sentence of the court be enforced.” On January 11, 1923, the accused swore to a motion to reinstate the motion for a new trial, upon the ground that he had been unable to make a brief of the evidence, and on the further grounds that “his counsel was tied up in the United States court on the 4th day of January, 1923, and was, on account of being engaged in the trial of said court, unable to reach Claxton, Georgia, before one or two o’clock on the 5th day of January, 1923;” and “that the mother of Messrs. Kirkland & Kirkland [counsel for the movant] was on the 5th day of January, 1923, very ill and not expected to live, and that they were prevented from attending the hearing of petition on his motion for new trial on account of the condition of their mother.” No evidence was introduced to support the allegations of the motion to reinstate, and on May 1, 1923, the judge granted an order overruling the motion. This was not error.
Judgment affirmed.
Broyles, O. J., and Buhe, J., concur.