83 P. 526 | Idaho | 1905
— This is an appeal from an order granting a new trial. The respondent has filed a motion to dismiss the appeal on the ground that service of the transcript on appeal was admitted by the stenographer employed in the office of Robertson, Miller & Rosenhaupt, of counsel for respondent residing in Spokane, in the name of the firm in whose office he was employed, and that such stenographer had no authority to admit service or accept copy of transcript in cases on appeal. It appears that on or about the fifteenth day of September, 1905, one of the attorneys for the appellants went to the office of Robertson, Miller & Rosenhaupt in Spokane, and finding no one but the stenographer in the front room of the office, presented to him a copy of the transcript and requested him to admit service for the firm, and that he did so in the name of the firm of attorneys with whom he was employed. It appears by the affidavit of the stenographer that at the time he accepted service one of the attorneys was in an adjoining room. There is no pretense made in this case that the attorneys for the respondent did not receive a copy of the transcript. While technically the stenographer might have had no authority to accept service and sign the names of his employers thereto, still it is admitted that the transcript was actually received by the attorneys, and it is clear that they were in no way deceived, misled or prejudiced by the service in the manner it was made. The motion is denied.
The appellants contend that the order granting a new trial in this ease must be reversed upon the grounds that it was prematurely made without notice to the appellants and without giving them the statutory time in which to prepare, serve and file their counter-affidavits to be considered on the hearing of the motion. Notice of intention to move for a new trial was served and filed April 15, 1905. Motion for a new trial accompanied by affidavits of A. E. Barnes, Mike