Majority
p. 269[No. 3,653.] HIMMELMANN v. HASKELL.
Headnote
Construction of Bulb.—A party moving under Buie Fifteen, to place a cause on the calendar for failure to comply with Buie Two as to tiling briefs, must show the opposite party was in default at the time the calendar was to he made up.Appeal from the District Court of the-Judicial District, City and County of San Francisco.
The defendant had judgment, and the plaintiff appealed January 6th, 1873. The transcript does not show the district from which the appeal was taken. The motion to place the cause on the calendar was made January 29th, 1873.
J. 0. Bates, for Appellant,
moved to place the cause on the calendar for the January Term, “ on the ground that appellant’s transcript and points and authorities were served on defendant’s attorney on the 7th of January, 1873; that
p. 270respondent has not served or filed any points or authorities in said cause, nor has the time been extended by stipulation, or order of the Court, or otherwise.”
A party moving under Rule Fifteen that a cause be placed on the calendar, on the ground that “ the opposite party has failed to file his transcript or his brief, or points and authorities, as prescribed by Rule Two,” must show that the opposite party was in default at the time when the Clerk was required by Rule Fifteen to make up the calendar.
Motion denied.