Livingstone v. Aberdeen-Springfield Canal Co.

MORGAN, J. Respondent has moved to dismiss this appeal for the reason that the order denying a new trial, from which the appeal is taken, was made after the expiration of one year from the date of judgment. Trial was had before Hon. J. M. Stevens, then district judge, and judgment rendered for respondent on November 27, 1914. Notice of motion for a new trial was filed by appellant on December 5th, next, and on January 27, 1915, an order purporting to grant it was made by Judge Stevens, whose term of office had, prior thereto, expired. No further proceedings were had until November 24,1915, when appellant appeared before Hon. F. J. Cowen, district judge, and requested that he hear and determine its motion for a new trial. At that time it was admitted that the order of January 27, 1915, was of no force or effect, for the reason that Stevens was not a judge of the district court at the time appellant’s motion was determined by him. Over respondent’s objection the matter was again submitted, and on December 24, 1915, being more than a year after the entry of judgment, Judge Cowen filed an order denying a new trial, from which this appeal is taken. This court has heretofore held that, unless good cause for the delay be shown, an appeal from an order denying a new trial, taken more than a year after the entry of judgment, will be dismissed on motion. (McCrea v. McGrew, 9 Ida. 382, 75 Pac. 67; Smith v. American Falls Canal etc. Co., 15 Ida. 89, 95 Pac. 1059; Wood v. Tanner, 15 Ida. 689, 99 Pac. 123, 1053.) The record does not show diligence on the part of appellant in bringing on for hearing the motion for a new trial, and, [594] upon the authority of the above-cited decisions, the appeal is dismissed. Costs are awarded to respondent. Rice, J., concurs. Budge, C. J., sat at the hearing, but did not participate in the opinion.