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Schmidt v. Union Oil Co.

168 Cal. 617 Court Cal. Decision date 1914-10-08 Docket Sac. No. 2110 English

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p. 617
[Sac. No. 2110.
In Bank.
October 8, 1914.]
'C. H. SCHMIDT and LIZZIE SCHMIDT, Respondents, v. UNION OIL COMPANY (a Corporation), Appellant.

Headnote

Appeal—Setting Case fob Argument on Calendas op Wrong District—Setting Aside Submission.—Where through a mistake of the clerk of the supreme court an appeal is placed for argument upon the calendar of a district other than the one to which it should have been assigned, and is argued there by the respondent and submitted, without any appearance by the appellant, who had no notice of the setting of the case, the hearing and submission are irregular, and will be set aside at the instance of the appellant desiring to make an oral argument.
Ib.—Counsel Mat Assume Appeal Will be Put on Proper Calendar. While counsel may not be entitled to any specific notice that a case is set on one of the calendars of the supreme court for hearing, they are entitled to assume that it will not be put upon the calendar of a district to which it does not belong.
APPLICATION to set aside the submission of an appeal from a judgment of the Superior Court of Fresno County. M. L. Short, Judge presiding.
The facts are stated in the opinion of the court.
W. A. Sutherland, and Thos. O. Toland, for Appellant.
Harris & Hayhurst, Joel H. Smith, and George- Cosgrave, for Respondents.

This is an appeal from a judgment of the superior court of Fresno County. The trial was had before Hon. M. L. Short, judge of the superior court of the county of Kings, sitting in Fresno County. In the division of counties of the state into districts for the hearing of appeals in this court, Fresno County is placed in the district of San Francisco and Kings County in the district of Sacramento. When the transcript on appeal was filed the clerk of this court assumed from the name of the judge that the appeal was from the county of Kings and inadvertently numbered the case as among those to be placed upon the calendar for the Sacramento district. The appeal was subsequently assigned to Department One and was placed upon the calendar of that

p. 618
department for argument at Sacramento on May 6, 1914. When the case was called for hearing there was no appearance for the appellant, counsel for respondents alone appearing and arguing, and the cause was submitted.

The appellant now calls our attention to the fact that the appeal was set for hearing in the wrong district and that the appellant did not, nor did its attorneys, have any notice of the setting of the case. It is also stated that said attorneys desired and now desire to make an oral argument in support of the appeal.

Under these circumstances it is plain that the hearing and submission of the cause were irregular. The appeal should have been treated as one belonging to the San Francisco district, in which event it would have taken its proper place upon the San Francisco calendar. While counsel may not be entitled to any specific notice that a case is set on one of our calendars for hearing, they are entitled to assume that it will not be put upon the calendar of a district to which the ease does not belong.

It is therefore ordered that the submission he vacated, and that the cause take its place among those to be set on the San Francisco calendar. The clerk is further directed to notify the attorneys for the respective parties of this order.