
    Meuer v. Chicago, M. & St. P. Ry. Co.
    ¡Rule 4 of the supreme court provides that, if notice of appeal be not served ' 30 days before the first day of the next succeeding term of the supreme court, the cause shall not then be tried, unless, when there is a shorter service, the respondent shall within five days after service give appellant notice that he will insist on the hearing at such term. H> Id. that a respondent could not obtain a hearing at the next succeeding term, where the notice of appeal was served on the first day of such term.* '
    (Opinion filed Oct. 14, 1892.)
    Application made to this court to place a cause upon the calendar.
    Denied.
    
      H. H. Field, for appellant.
    
      Julian Bennett, for respondent.
   Bennett, P. J.

This case was heard in the Day county circuit court, and judgment rendered in favor of plaintiff. On the 4th day of October, 1892, the notice of appeal and undertaking was served upon the attorney for plaintiff. On the 7th day of October the attorney for plaintiff served upon the appellant a notice that the plaintiff would insist upon a hearing of the appeal at this, the October, term of the supreme court. This application, no doubt, is made under the provisions of rule 4 of this court, which reads as follows: “The notice of appeal shall be served in the manner provided by law; and, if not served thirty days before the first day of the next succeeding term of the supreme court, the cause shall not then be tried, unless, when there is a shorter service, the respondent shall within five days after service of the notice of appeal give the appellant notice that he will insist on a hearing at such term, in which event the same shall be heard at such term, unless continued upon a sufficient showing, or otherwise disposed of.” The first part of the rule has application to causes where the notices of appeal have been served 30 days or more before the commencement of the next succeeding term of the court. The latter or qualifying portion of the rule applies to causes where notices of appeal have not been served 30 days or more before the commencement of the next succeeding term of this court. Under the rule, all causes in which the notices of appeal have been served thirty days before the commencement of the next succeeding term, as a matter of right,.shall be heard at that term; but if the notice of appeal has been served less than 30 days before the commencement of the next term, then the case shall not be heard, unless the respondent shall, within 5 days after such service, give the appellant notice that he will insist upon a hearing at that term of the court. In the one case, both appellant and respondent may insist upon a hearing; in the other, the respondent may demand a hearing, subject, of course, to other disposition for cause, as stated in the rule; but in both cases the rule applies to causes where the appeal has been perfected before the commencement of the term of court. In the cause before us the notice of appeal was served on the 4th day of October, the day on which the present term of this court began. Consequently the appeal was not taken before the commencement of the term. Therefore the rule does not govern, and the application will be denied.

All the judges concur.  