I concur in the views expressed in the opinion prepared by Mr. Justice CHAPMAN.
It appears to me the conclusion reached in that opinion must be correct because the motion for new trial was not finally disposed of until the trial court acted on the motion for rehearing at the same term of the court at which the motion for new trial was acted on by order denying the same. During that term the court had power to vacate the order denying the motion for new trial.
When the motion for rehearing was filed the trial court could have stricken it from the files or could have taken it under consideration to determine whether or not it should be granted. The record shows the court pursued the latter course. *Page 76
If defendant had sued out writ of error while the court had the motion for rehearing under consideration, then the trial court would have been ousted of jurisdiction to further consider the motion. The disposition of the motion for new trial did not occur as long as the record showed that the trial court had not determined the motion for rehearing which he had taken under consideration before the expiration of the time in which writ of error could be taken and at a time when he had the power to vacate and set aside the order denying new trial.
WHITFIELD and BROWN, J.J., concur.
