1. Where in term time an order is passed directing that a mot-ion for new trial then pending be heard and determined at a day named in vacation, and time is given by the presiding judge until that date within which to perfect the brief of evidence, and have the same approved, and where upon the day thus named a brief of evidence is presented to and approved by the judge, and he thereupon orders the same filed, a motion made at the hearing to dismiss the motion for a new trial, upon the ground that no brief of evidence has been filed as required by law, is properly overruled. * f
2. This being a writ of error from the grant of a first new, trial, and there being a conflict of evidence, the discretion of the trial judge will not be controlled. Judgment affirmed.