(concurring in the views of MR. JUSTICE FREEBOURN).
I agree with the views of MR. JUSTICE FREEBOURN but wish to add the following. The contention of respondents which forms the basis of the dissenting opinions overlooks or fails to give effect to the first part of R. C. M. 1947, sec. 93-5606, which provides that “the hearing on the motion for new trial shall be had within ten days after the notice of motion is filed when the motion is made only on the minutes of the court and within ten days after the filing of affidavits and counter-affidavits when the motion is made on affidavits. ’ ’
Here no affidavits or. counter-affidavits were filed; hence the case stands as if the motion were made on the minutes of the court alone. It follows that the motion under the statute must have been set for hearing originally within ten days after the notice of motion was filed regardless of when or how the motion was actually made. The notice of motion was filed on June 13, 1953. Under the statute then it must have been noticed for hearing not later than June 23, 1953. However, since the right to disqualify judges was exercised, the motion could not be set until a judge finally assumed jurisdiction of the case. *449Judge Hattersley assumed jurisdiction of the case on July 23rd. Under the statute he could not continue the hearing for more than 30 days after assuming jurisdiction. That is what was held in Benema v. Union Central Life Ins. Co., 94 Mont. 138, 21 Pac. (2d) 69, 70, where we said: “As soon as Judge Elwell assumed jurisdiction of the cause, then he became subject to the limitations provided by section 9400 [Rev. Codes 1921, now R. C. M. 1947, see. 93-5606], and he could not have continued hearing on the motion for more than thirty days * *
Judge Hattersley did not continue the hearing for 30 days after assuming jurisdiction. To do so he would have set the hearing for August 23,1953. Instead of that he heard the motion on July 29th. He then assumed, according to the answer and return and according to the dissenting opinions, to continue the hearing another 30 days which in my opinion he could not do. He had already consumed six of the 30 days after assuming jurisdiction on July 23rd until hearing the matter on July 29th. The 30-day limitation provided for in R. C. M. 1947, sec. 93-5606, expired on August 23rd.
The dissenting opinions overlook the vital fact that the 30-day period mentioned in section 93-5606 commenced to run when Judge Hattersley assumed jurisdiction which was on July 23rd, and did not commence to run on July 29th. The ruling made by Judge Hattersley on September 11th came too late. The motion for new trial had already been denied by operation of law.
Under the statute both the hearing on motion for new trial and the decision thereon must be made with dispatch. It is not competent to delay the hearing on a motion for new trial by extending the time for briefs beyond the statutory time for hearing the motion, nor may the decision thereon be postponed beyond the statutory time by fixing a time when the motion will be deemed submitted to the court irrespective of when the briefs have been presented.