Plaintiff sues for damages for the killing of his horse and the injury to a buggy occasioned by a collision with an automobile operated by defendant.

On the original trial of the case below the evidence showed without contradiction that the automobile was being operated at night at a dangerous and unlawful rate of speed in a careless and incompetent manner and that by reason of the collision plaintiff suffered damages to the extent and in the amount alleged in his petition. But the Court having granted a non-suit, because it was not shown who operated or owned the machine on the occasion of the accident, the plaintiff applied for and secured a new trial, upon which it was conclusively proved ’that defendant was operating the automobile. The original judgment of non-suit was thereupon set aside and a judgment for plaintiff was rendered as prayed for.

. It cannot be disputed, and, in fact, it was practically conceded upon the argument, that the testimony adduced upon the original trial, supplemented by that heard upon *317the new trial, establishes plaintiff’s ease; but me defendant contends that the testimony upon the new trial alone 'should be considered and that the Court should wholly disregard the testimony on the original trial for the reason that the latter was not offered in evidence when the new trial was had.

The point is not well founded. The testimony on the original trial had been reduced to writing and filed as part of the record, and consequently it was not necessary to offer or to file same anew upon the new trial, as Act 247 of 1908 provides that under these circumstances, “all such testimony and all evidence offered upon the former trial shall be considered as already in evidence.”

There is no error in the judgment appealed from and it is accordingly affirmed.

Judgment. affirmed.