[Rich was found guilty of cheating and swindling, in the city court of Atlanta, on August 25,1884. On August 29, counsel for defendant took the following consent order;
“ The defendant desiring to move for new trial in this case, and there not being sufficient time tó perlect and file brief of evidence and motion for new trial, the parties consenting thereto, it is ordered that said brief of evidence and motion for new trial may also be heard in vacation, at such time as may be fixed by the judge, with like, right to defendant to except as in term.”
The June term of the city court adjourned Friday, August 29. On Monday, September 22, the September term began and continued until October 10. No motion for new trial was filed until November 5.
At the December term of court, the solicitor of the city court moved to dismiss the motion for new trial. He made an affidavit setting out the above stated facts, and that he was in the city of Atlanta continuously until November 22, when he left, and returned on December *8126; also that the brief of evidence was not tendered him until after the latter date. Counsel for the movant testified that they understood the order to give them until the December term of court to file the motion and brief! that they called frequently at the office of the solicitor and failed to find him ; that they were informed that he was out of the city; that one of. them became sick and went away for his health, and that the other asked the judge for an order allowing the case to be heard at the December term, but the judge replied that he could uot pass such an order in vacation, and told counsel to call up the matter in term time.
The court dismissed the motion, and movant excepted.]