I dissent from that portion of the majority opinion holding that the motion to dismiss the appeal from the order denying a motion for new trial should be denied. The trial court was without jurisdiction to hear and determine the motion for new trial for the reason that said motion was supported by affidavits and the time allowed to serve and file counter-affidavits had not expired, as provided by section7-604, I. C. A. If this jurisdictional right could be waived, the record supports respondent's contention that it was not waived. The hearing on the motion for new trial was concededly prematurely set. Counsel for respondent strenuously objected to the hearing on the motion supported by the affidavits, and called the attention of the trial court to section 7-604, I. C. A., and particularly to subdivision 1 thereof, which provides:
"If the motion is to be made upon affidavits, the moving party must, within ten days after serving the notice, or such further time as the court in which the action is pending, or a judge thereof, may allow, file such affidavits with the clerk and serve a copy upon the adverse party, who shall have ten days to file counter affidavits, a copy of which must be served upon the moving party."
The trial court's attention was further called to the case ofPeter v. Kalez, 11 Idaho 553, 83 P. 526, wherein the following language is used:
"Counsel for appellant takes the position that at the time this motion was argued, submitted and taken under advisement by the court, appellant's time for filing counter-affidavits had not yet expired, and for that reason the hearing was premature, and the court had no authority to hear or consider the matter."
and referring to section 4441, Rev. Stats., now section 7-604, I. C. A., the court further said: *Page 590
"It will at once be observed from the provisions of this statute that the motion for a new trial was argued and submitted to the court and taken under advisement some four days prior to the expiration of the time which was allowed the adverse parties for filing their counter-affidavits. The notice of intention to present such motion on that day was therefore a nullity, for the reason that it specified a date previous tothe time limited by statute within which the defendants wereauthorized to file their proofs in opposition to the motion. . . . . Section 4442 of the Revised Statutes, (Now sec. 7-605, I. C. A.) provides that 'the application for a new trial shall be heard at the earliest practicable period after notice of the motion, if the motion is to be heard upon the minutes of the court, and in other cases, after the affidavit, bill of exceptions, or statement, as the case may be, are filed, and may be brought to a hearing upon the motion of either party.' Now, keeping in mind the fact that the adverse party is allowed ten days after service upon him of the moving party's adffiavits in which to file and serve his affidavits, it is clear that the court or judge thereof has no power or authority to hear and determine a motion for a new trial prior to the expiration of this period allowed for the filing of affidavits."
The order of the court setting the motion down for hearing being premature was a nullity, and at the time of the appearance of counsel the court had no jurisdiction to entertain the motion and should have refused to entertain the same for lack of jurisdiction. The order being a nullity there was nothing upon which a waiver could operate. This being a jurisdictional question it may be raised in this court for the first time.
I also dissent from that portion of the majority opinion wherein it is held that the documentary evidence furnished to the judge after the case had been closed should not be stricken and disregarded. The majority opinion discloses sufficient facts to justify the statement that to uphold such a practice could well result in serious consequences, in this: That it would afford no opportunity for an inspection of the documentary evidence, nor examination of the witness furnishing *Page 591 the same, and amounts in effect to the submission of evidence to the court after the case has been finally submitted. In the instant case the judge had possession of the documentary evidence before counsel for respondent knew that the same had been forwarded to the attorney for appellant. Concededly it was an oversight and inadvertence on the part of appellant's attorney to furnish the documentary evidence to the court and resulted in no injury to respondent, but it could well have been otherwise, and to refuse to strike and disregard such documentary evidence is inviting a practice that should not be permitted.
I further dissent from the holding in the majority opinion that no costs should be allowed lo respondent.