Where, during the term and within two days after the rendition

of a verdict in the superior court, the losing party presented to the court a motion for a new trial in all respects regular, and thereupon a rule nisi was issued, calling upon the opposite party to show cause at a later date (the same being specified in the order) why the motion should not be granted, and, in connection with the rule nisi and in the same order, the movant was granted an extension of time (allowing “until the hearing of the motion”) in which to prepare and present for approval and filing a brief of the evidence in the case, it being recited in the order that it was “made to appear that it was impossible to make out and prepare a brief of the testimony in said case before the adjournment of court,” and it further appearing that this motion and rule nisi were promptly served upon the respondent, the court did not err in overruling a motion to vacate the order allowing the movant an extension of time within which to perfect the motion in the respects mentioned, upon the grounds: (1) that the order was granted ex parte, without any rule nisi thereon directed to the plaintiff to show cause against the grant of the order, without notice to the plaintiff, without his knowledge or consent or an opportunity to show cause against the grant of the order, and therefore the court was without jurisdiction to grant the same; (2) that the time granted in the order was in,excess of the time allowed by law for the filing of a brief of evidence upon a motion for a new trial, and was unreasonable, and in this respect the order was an abuse of the discretion vested in the court; and (3) that the court was without power to grant the defendant the privilege which, under the terms of the order, extended the time for filing the brief of evidence beyond the next regular term of court and thenceforward indefinitely in the futura, and it appeared from the record that no brief of evidence had been filed, and that more than 30 days had elapsed since, the adjournment of the term of court at which the verdict complained of was rendered.

(a.) If the time allowed by way of extension was as a matter of fact unreasonable, the respondent should have moved promptly to vacate this order and to set the case down for a hearing at some time less remote than that named in the order granted. In the present case the rule nisi was granted on the 17th day of June, 1911, and served on the same day, and the motion to vacate and dismiss was apparently made on the 19th day of July, 1912.

Jiidgment affirmed.