Lem Hing Dun v. United States, 49 F. 145

Hanford, District Judge. A motion to dismiss the appeal in this case has been made for the reasons that the appellant has failed to have the record printed, and copies thereof furnished to the adverse party, as required by rule 23 of this court, and that the attorney for the appellant is not yet prepared to argue the case, although it was docketed in this court prior to the beginning of the present term in October last. We have acted upon and granted similar motions at this session.

In doing so, we were influenced by representations made in open court that counsel for the appellant in each case had declared an intention to abandon the appeal, and by the fact that the motions were not opposed by any attorney appearing generally in behalf of the appellants. But we wish to have it understood that we have not intended to establish a prec^ edent, or to give a construction to the rules authorizing motions to dismiss prior to the actual calling of the cases for argument.

This court has but one term in each year, and rule 17 does not warrant the dismissal of a case until it shall have been called for hearing at two terms successively. If upon such call at the second term neither party is ready to argue it, a case will be then, dismissed by the court upon its own motion; the object of the rule being to prevent the slumbering of cases after both parties have lost interest therein.

Rule 22 provides that where no counsel appears and no brief has been filed for the plaintiff in error or appellant when the case is called for trial, the defendant may have the plaintiff called, and the writ of error or appeal dismissed. It is certainly plain that under this rule a motion to dismiss, made before the case is regularly reached and called for trial, is premature.

Rule 23 provides for printing of the record and service of copies to be made at least six days before the trial, and that, if the record shall not have been printed when the case is reached in the regular call of the docket, the case may be dismissed. The time when a motion to dismiss for failure to observe the requirements of this rule may be made is the same as under rule 22.

The regular call of the docket is the call that is made of the cases thereon for trial, and not a going through the entire docket at any one time for the purpose of informing the court and counsel as to the condition of pending cases, or to arrange the business of the court. The rules are intended to conform the practice in this court to the practice in the supreme court as nearly as it may be, and we think that if a case is docketed in time, any subsequent neglect should not authorize the respondent to move for a dismissal prior to the actual call of the case for trial.

This case has not been reached in the call of the docket, and in our opinion we cannot at this time entertain a motion to dismission such grounds as are alleged in this motion.