88 P. 900 | Idaho | 1906
This case has been here once before on appeal (83 Pac. 525) and was reversed on the grounds that a new trial had been granted prior to the settlement and allotvanee of the statement that was used on such motion. After the remittitur went down the trial judge took up the motion for a new trial and granted the same, and the plaintiff has again appealed from the order. As will be seen from an examination of the former opinion of this court, the respective counsel had entered into a stipulation prior to settlement of the statement, whereby they each waived notice of the time and place of submission of motion for new trial and also the right to make an argument on such motion. After the case was reversed and remanded the trial court took up the motion for a new trial and considered and passed upon it without causing any further notice to be given to plaintiff’s attorney. Appellant complains of this action, and insists that he should have had notice, and in support thereof cites Peter v. Kalez, 11 Idaho, 553, 83 Pac. 526, where this court said: “The adverse party is entitled to notice of 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 ease.” This latter opinion states the rule of practice as established in this state, and, but for the stipulation entered into by counsel .in the ease at bar, he would have been entitled to the statutory notice and an opportunity to be heard on the motion. The stipulation, however, was still in force, and so long as it remained in force and effect the trial court had a right to treat it as a waiver on the part of plaintiff’s counsel of the right to notice and a hearing thereon. Had plaintiff desired to be heard on the motion when it came up the second time after the case had been reversed on appeal, he might have given notice to the adverse party of his intention to avoid that stipulation and have filed proof thereof with the clerk of the court, and he would have thereafter undoubtedly been entitled to notice as though no stipulation had been entered into..