Where there was neither service nor written waiver of service upon the opposite party of the rule nisi issued -in connection with a motion for a new trial, and where, at the first opportunity and before either expressly or impliedly consenting to the completion of the motion or its judicial consideration upon its merits, the respondent moved to dismiss the proceeding, for want of such service, the court did not err in dismissing it. Penal Code (1910), § 1092; Civil Code (191Ó), § 6080; Smedley v. Williams, 112 Ga. 114 (37 S. E. 111); Summerford v. Kinard, 8 Ga. App. 253, (68 S. E. 955); McMullen v. Citizens Bank, 123 Ga. 400 (51 S. E. 342); Tyler v. Arnett, 13 Ga. App. 595 (79 S. E. 482).

Judgment affirmed.