Carey v. Lafferty

BUDGE, J.,

Dissenting. — 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 section 7-604, 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…