The opinion
ANGELLOTTI, J.
Plaintiff appeals from a judgment and an order denying his motion for a new trial. The transcript on appeal was filed herein on June 26, 1902. Appellant has not filed his points and authorities, and his time to so do has long since expired. Although there were no points and authorities on file, the appeal was inadvertently placed upon the calendar for oral argument, at the session of the court held at Los Angeles in April, 1904, without any order of the court to that effect, and there then being no appearance of either party, was continued to the October, 1904, session, at which time the appellant appeared, respondent not appearing, and, upon request of appellant, the appeal was submitted, without argument, for decision. It does not appear that respondent has had any notice that the case would come on for argument.
Under these circumstances, the court will not undertake to pass upon the merits of the appeal. Under rule XVII of this court, the clerk is not authorized in. the absence of a special order to that effect, to place a case upon the calendar for oral argument until points and authorities have been filed. Until points and authorities on behalf of the appellant have been served and filed, the respondents have the right to assume that the case will not be on the calendar for argument, and are not called upon to observe whether it. has been placed thereon.
Under rule V of this court, appellant’s points and authorities not having been filed, this appeal is subject to be dismissed
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on motion o£ the respondents, upon notice given to the appellant. It is not in condition to be decided.
The order submitting the cause for decision is vacated, and the case stricken from the oral-argument calendar.
Shaw, J., and Van Dyke, J., concurred.