Where a motion for á new trial was made, and an order passed during the term at which the ease was tried, providing that movants have until the hearing to prepare and present for approval a brief of the evidence, and that the judge enter his approval thereon at any time in term or vacation, and that if the hearing was had in vacation such brief might be filed within 10 days after such motion was determined, and on the margin of such order was another order signed by- such judge, providing that such brief of evidence mus't be written out and submitted to counsel on the' other side and filed, subject to approval, within 40 days from date of the orders, both of which were signed at the same time: Held, the judgment of the court dismissing such motion at the hearing thereof during the succeeding term of the court will not be disturbed, where it appears that the brief of evidence was not submitted or filed within 40 days from the date of the orders.

Judgment affirmed.