
    COURT OF APPEALS.
    Eliza A. Crain, Adm’x, &c., Respondent, agt. Reuben Rowley, imp’d, &c., Appellant.
    A motion upon notice, will not be allowed to be taken or granted l>y default, where it interferes with the power of the court in controlling their calendar.
    Where a motion was made to permit a cause to be placed in the calendar, as of the time the return should have been regularly filed, it was denied, for the reason that such motions would derange the whole calendar, as many of the returns were undoubtedly filed after the regular time.
    
      July Term, 1849.
    —At the last May term of this court, a motion was made to dismiss the appeal in this cause, on the ground that the return had not been filed. The motion was granted, unless the return was filed in twenty days, &c.
    At this term this motion was made by respondent, on notice to have the cause placed upon the calendar as of the day the return should have been filed, if it had been regularly filed after the notice of appeal was served. The motion was not opposed.
    William SiLLiMAN,/c>r motion.
    
   The question arose, whether under rule 15 of this court, a motion properly made upon notice, should not be granted of course, where there was no opposition.

The court said they had the control of their own calendar; and of course, any motion which tended to interfere with their power in this respect, would be examined and disposed of on the merits.

They denied the motion on the ground, 1st. That this question should have been introduced and decided upon the motion made at the May term. Then was the proper time to have disposed of it,

2d. That to allow a motion of this kind, permitting a cause to be placed on the calendar as of the time the return should have been regularly filed, would be, to derange the whole calendar, because many of the returns made to the court are undoubtedly filed after the regular time prescribed by the statute and the rules, of the court. ,  