Peter v. Kalez

Citations

• 11 Idaho 553
• 83 P. 526
• 1905 Ida. LEXIS 80

Syllabus

<p>Motion for New Trial — Premature Hearing and Submission — Affidavits of Newly Discovered Evidence — Counter-Affidavits— —Time for Piling and Service — Proof of Service of Notice and Motion.</p> <p>1. Under section 4441 of tbe Revised Statutes, where a motion for a new trial is to be made on affidavits, the adverse party is entitled to ten days after service on him of the affidavits of the moving party in which to file and serve counter-affidavits and within the period allowed for filing such counter-affidavits, the court has no power or authority to hear and consider a motion for a new trial based on the affidavits of the moving party.</p> <p>2. By section 4442 the court is prohibited from hearing a motion for a^new trial based on affidavits until after the expiration of the ten days allowed the adverse party in which to file counter-affidavits.</p> <p>3. The adverse party is entitled to notice of the time and place of the hearing on a motion for a new trial and to be present at the hearing and present his side of the case.</p> <p>4. Sufficiency of proof of service of notice and motion for a new trial considered and discussed.</p> <p>(Syllabus by the court.)</p>