Legal Opinion · Concurrence

Darling v. Fremstadt

Idaho Supreme Court

Decided November 5, 1912Published

APPEAL from the District Court of the Fourth Judicial District for Cassia County. Hon. C. 0. Stockslager, Judge. Action to recover a debt. Judgment for plaintiff. Motion for a new trial made; denied.

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APPEAL from the District Court of the Fourth Judicial District for Cassia County. Hon. C. 0. Stockslager, Judge. Action to recover a debt. Judgment for plaintiff. Motion for a new trial made; denied. No application was made to the court for an extension of time in which to file counter-affidavits, and the statute being mandatory, and the period therein provided having expired, the court was without jurisdiction to either consider said counter-affidavits or order them filed nunc pro tunc, as it did nearly three months thereafter. (Swartz v. Davis, 9 Ida. 238, 74 Pae. 800; Sandstrom, v. Smith,…

1Concurrence

AILSHIE, J.,

Concurring in Part. — I concur in an affirmance of the judgment. It seems, however, that the court is going to a great length and contrary to a long line of decisions of this court in holding that affidavits on motion for a new trial may be filed and considered after the expiration of the time granted by statute. This court has uniformly maintained a contrary doctrine, as will be seen from the following eases: Hoehnan v. New York Dry Goods Co., 8 Ida. 66, 67 Pac. 796; Swartz v. Davis, 9 Ida. 238, 74 Pac. 800; Sandstrom v. Smith, 11 Ida. 779, 84 Pac. 1060; Moe v. Barger, 10 Ida.…

2Cases cited6 opinions

  1. Moe v. HargerIdaho Supreme Court · 1904
  2. Bank of Commerce, Ltd. v. BaldwinIdaho Supreme Court · 1908
  3. Sandstrom v. SmithIdaho Supreme Court · 1906
  4. Swartz v. DavisIdaho Supreme Court · 1903
  5. Hoehnan v. New York Drygoods Co.Idaho Supreme Court · 1901

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