[At the October term, 1883, of Houston superior court, Hardison obtained a judgment against Burr. At the same term, Burr moved for a new trial. The plaintiff and his counsel were absent. Being about to adjourn, the court ordered that the motion be heard by the presiding judge in vacation, with leave to the movant to perfect it and make out a brief of the evidence. When the motion came on to be heard in vacation, the plaintiff moved to dismiss it, because the order for the hearing thereof was taken in his absence and without his consent, and because he had been served with the motion only three days before the time appointed for its hearing. The court overruled, the objections, heard the motion, and granted a new trial, and the plaintiff excepted. The bill of exceptions recites the trial of the case, and the making of the motion for new trial, the taking of an ex parle order to hear the motion *126and complete the brief in vacation, the grant of a rule nisi. hearing of the motion and grant of the new trial in vacation ; and states that the plaintiff in error excepts to the same, and 'assigns as error that the court erred in not dismissing the motion for new trial, on the grounds stated above; in granting the rule nisi on the day in vacation on which the case had been set by ex parte order; and because the preponderance of evidence sustained the verdict

A motion was made to dismiss the writ of error for want of a proper assignment of error on the grant of the motion, which was overruled.]