1. PRACTICE: submission of case. The appellee insists that he was not served with notice of the motion to set aside the judgment. But the bill of exceptions shows that he filed affidar ^ts ™ resistance to the motion, and the record entry shows that he appeared at the hearing upon the same in court.

The plaintiff filed an affidavit to the effect that the case was submitted before the 18th of April, and was held open merely to allow the defendant to introduce one more witness, and also to allow the plaintiff to introduce a witness in rebuttal if he should see fit.

The bill of exceptions does not show any such submission. Besides, a ease cannot be submitted while the same is still open for the admission of evidence. The fact that it is agreed by counsel, or ordered by the court, .that the evidence *578shall be limited, does not constitute a submission of the case subject to the admission of the evidence. So long as the case is open for evidence, it is open for all proper aj>plications and orders.

The affidavit filed by plaintiff shows that the defendant agreed that if the witness whom he desired to introduce upon the 18th of April should not then be present he would ask for no further postponement, and the affidavit shows that the witness was not present.

If such agreement were material, we could not regard it as properly proven. Code, § 213.

The case having been submitted without either having been called in court for that purpose, or so peremptorily ordered by the judge, at any fixed time and place, and without the knowledge or consent of either the defendant or his counsel, was, we think, improperly submitted, and the judgment, we think, should have been set aside.

Reversed.