Laws

704), an indictment which charged Post Date: Sat, 26 Jul 2008 6:26:01 +0000
They re- turned a verdict of guilt Y It was held that the instruction was not such as the prisoner could complain of, and a new trial was refused, the evidence being such as to justify the verdi Ct 1 Hammons v State, 29 Tex App 445, although the indictment be de- fective as to the burglar Y Surplusag e And the charge of burglary may be treated as surplus- ag e Hammons v State, 29 Tex App 445 2 Reg v Bain, 9 Cox C C 98, under an indictment for breaking, etc, a shop with intent, etc, under 24 25 Viet, C 9, 557; Reg v Spanner, 12 Cox C C 155; Williams v State, 47 Ga 212; People v Lawton, 56 Barb ( N Y) 126; State v Behee, 17 Ka N 402 See also Williams v State, 46 Ga 212 3 Reg v Reid, i Eng L E Q 599; Taliaferro v Co M, 77 Va 411 In State v Jordan, 87 Iowa 86, under an indictment for burglary, the court sustained a conviction for the lesser offense of housebreaking in the daytime (Code, 4465), and this though the indictment alleged the offense as having been committed in the night-ti Me In State v Fleming, 107 N Car 909, on a charge of burglary, a con- viction for breaking into a dwelling- house, not burglariously (Code, 996) was sustaine d 4 State v Maxwell, 42 Iowa 213; State v Moore, 12 N H 42 Without Forc e And an allegation of force in the indictment does not prevent a conviction thereunder for an entry without forc e Thus, in Nevada, under a statute which read, " every person who shall in the night- time forcibly break and enter, or with- out force, * * * any dwelling-house * * * with intent," etc, an indictment alleg- ing a breaking and entering with force will support a trial or conviction for entering without forc e State v Wat- kins, ii Nev 30 Contr A In Co M v Carrol, 8 Mas S 490, it was held that under a statute making punishable those who, with intent to commit any felony, "shall in the night-time enter without breaking, or in the daytime break and enter a warehouse," an entry in the night by breaking was not to be included, but the sentence must be as at common la W 5 In State v Behee, 17 Ka N 402, the statute reading that " upon an in- dictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto, * * * if the information, charging an of- fense in one degree, necessarily in- cludes in the facts stated therein any degree inferior thereto " (Cri M Code, 121), the decision that on a charge of burglary in the first degree (Code, 61), if the existence of some human being in the house, as required to complete the offense, was not proved, the accused could be convicted X MINOR OFFENSES 1 Accessor Y In an indictment against one charged with being an accessory to a burglary, the same par- ticularity is required as is necessary in an indictment against the principa L 1 2 Attempt. An attempt to commit the crime of burglary be- ing an offense indictable at the common law, as well as under numerous statutes, the form of an indictment for this offense is obviou S 2 for burglary in the second degree (8 63), was in conformity with the stat- ute above quote d Also State v Flem- ing, 107 N Car 905 And in Summers v State, 9 Tex App 398, it was held that where the higher degree consisted in "entering a house by force, threats, or fraud, at night, or in like manner entering a house during the day, and remaining concealed there until night, with in- tent," etc (Penal Code, art. 704), an indictment which charged an entry by force, but failed to charge when the entry was made, whether by day or night, would support a conviction for the lower grade (art.

Autor of the post: Undefined

Surplusag e Unnecessary words may Post Date: Sat, 26 Jul 2008 6:07:53 +0000
705), making one guilty who with intent, etc, "by breaking enters a house in the day- ti Me" Verdict must Find the Degre e It is held, in Thomas v State, 5 How (Mis S) 20, that where the statutes define sev- eral degrees of the offense, the ver- dict must find the particular degree, otherwise no judgment can be ren- dere d Contra If Indictment Good and Sus- tained by Proof If an indictment sets forth all the facts which constitute the crime of burglary in the first degree, and all the averments are properly sustained by the evidence, it appears that it is error to instruct the jury to find the defendant guilty of burglary in the second degre e State v Alex- ander, 56 Mo 131 Where Averment of Time Defectiv e In State v Behee, 17 Ka N 402, it was held that where an information for a higher degree of burglary expressly averred that the offense was committed in the night-time, and the lower degree was defined as a " breaking and enter- ing in the daytime," etc, it was error under the indictment to convict for said lower degree of the offens e And the court (Horton, J) observed: " If such practice was permitted, then a defendant would not be informed of the ' nature and cause of the accusa- tion against him ' when tried upon an informatio N It is only where the lesser offense is included in the great- er that a verdict can be for the lesser under an indictment or information for the greaTer" To the same point see Williams v State, 46 Ga 215 1 Co M v Kaas, 3 BrewSt (Pa)422 See Co M v Mullen, 150 Mas S 394 Name of Principa L The indictment for burglary against an accessory need not give the name of the principal if he is unknow N Co M v Kaas, 3 BrewSt (Pa) 422 Also Co M v Glov- er, in Mas S 395 Names of Third Partie S Nor is it er- ror to omit the names of third parties, if they are unknow N Co M v Kaas, 3 BrewSt (Pa) 422 Guilt of Principal not Necessar Y In Pennsylvania, New York, and Massa- chusetts the principal need not have been indicted and punished before the accessory is proceeded againSt Co M -v Kaas, 3 BrewSt (Pa) 422 ; Co M v Glover, in Mas S 395 The same is the case in Ohio Hartshorn v State, 29 Ohio St 635 Contr A But in Texas the contrary doctrine prevail S In Cohea v State, II Tex App 622, it is decided that " to convict the defendant [an acces- sory], it was necessary to establish the guilt of the principa L" Joinder of Count S It is permissible to join in an indictment several counts against an accessor Y Co M v Mullen, 150 Mas S 394 Distinct Breaking S And in separate counts the defendant may be charged with being accessory to distinct break- ing S Co M v Mullen, 150 Mas S 394 Proof In an indictment against ac- cessories to a burglary, the proof must correspond to the allegation S Loyd v State, 42 Ga 221 2 See Hackett v Co M, 15 Pa St 3 Conspirac Y An indictment for conspiracy to commit burg- lary, " with intent to steal the goods of " a certain person, naming him, is supported by proof that the goods in fact belonged to that person and to another, who was his dormant partneR1 and Forms, 258-261; State v Jor- dan, 75 N Car 27; also Wharton's Pre C Indi Ct 386 But see State -v Colvin, 90 N Car 717 Averment of Overt Acts Necessar Y In the indictment charging the crime of attempt, some overt acts of the ac- cused, which in the ordinary course of events would result in the commission of the burglary, must be both alleged and proved (although Wharton's Pre C Indi Ct 386 contains in the form there given no such averment). See State v Colvin, 90 N Car 717 For a suffi- cient averment of such, see Harris v People, 44 Mich 308 Averment of Being Armed not Fata L It was decided, in Harris v People, 44 Mich 305 that a common-law in- formation for attempt was not bad in alleging that one respondent was armed and the other was not. Surplusag e Unnecessary words may be rejected as surplusag e Hack- ett v Co M, 15 Pa St 98 If the indictment for the attempt to commit burglary alleges some, but not all, of the elements of the higher grade of burglary, the averments that are so described, if unnecessary to constitute the lower grade of the offense, may be rejected as surplusage, and are not fatal to the indJctment.

Autor of the post: Undefined

People v Murray, 67Cal103 Verdict Post Date: Sat, 26 Jul 2008 5:55:01 +0000
In Harris v People, 44 Mich 305, it was held that, in an information under Comp Laws, 7561, for attempt to commit burglary by one who was armed, which alleged this fact, but failed also to allege another essential to the higher offense, to wit, that some one was lawfully in the dwelling- house, the allegation that the respond- ent was armed might be rejected as surplusag e Under Statutes Language of Statute Sufficient. An information for attempt, that charges the offense in the lan- guage of the statute defining it, is suf- ficient. People v Murray, 67Cal103 Verdict must Specify the Degre e In cases where the indictment for attempt to commit burglary fails to minutely describe the burglary attempted to be committed, so that it does not appear which degree of the offense was so attempted, the verdict for the attempt should find the degree of burglary which the accused attempted to com- mit.

Autor of the post: Undefined

Rules of court controlling Post Date: Sat, 26 Jul 2008 5:37:11 +0000
In People v Travers, 73Cal580, the indictment failing to state whether the attempt was to commit a daytime or a night-time breaking, the verdict for the attempt must find the degree, under section 1157 of the cod e I DEFINITIO N A calendar is a list of litigated causes prepared by the clerk of a court of record a short time previous to the commencement of each term or sitting, containing the title of each cause, the nature of the action, the date of the issue, and the names of the attorneys for the respective partie S It is in- 3 Ency C P I Pr 51 801 tended for the use of the court and bar on the trial or hearin g In some of the states it is called the docket. 1 I I POWERS OF COURT OVER 1 Generall Y Independently of statutes or the rules of practice, every court has the power to regu- late its own calendar ; 9 to establish short cause calendars ; 3 for good and sufficient cause to try a case out of its order, 4 or stop the trial of a cause on the short cause calendar after the time limited by rule has expire d 5 But the court cannot dismiss, in the absence of the adverse party, an action not placed upon the calendar pursuant to notice, 6 or grant a default in such a case at a subsequent ter M 7 2 Rules of Court. Rules of court controlling the procedure and calling and hearing of causes, if not inconsistent with statu- tory enactment, have the force and effect of law for the govern- ment of attorneys and the court.

Autor of the post: Undefined

2, giving preferences to certain Post Date: Sat, 26 Jul 2008 5:26:26 +0000
8 Uniformity of Rule S But such rules cannot be antagonistic to existing statutes, nor can a temporary local rule be promulgated in- consistent with established practice and law, where the rules of practice are required to be unifor M 9 statements of Judg e It has been held that attorneys have a right to rely upon what the judge says in term time as to the status of a cause on his docket. 10 1 Burrill Law Diet 239; Abbott Law Diet 178; Anderson Law Diet 144 2 Hunnewell v Shafer (City Ct), 30 N Y St Rep 831, 18 Civ Pro Rep ( N Y)336; Smith v Keepers, 5 Civ Pro Rep ( N Y Supreme Ct) 66; Robert- son v Schellhass, 62 How Pr ( N Y Supreme Ct) 489 ; Dallas City Nat Bank v National Park Bank, 62 How Pr ( N Y Supreme Ct)495; Naretzek v Cauldwell, 4 Robt ( N Y) 666; Maloney v Hunt, 29 Mo App 379; Jensen v Fricke, 133 111 171; Mem- phis, et C RCo v Dowd, 9 Heis K (Tenn) 185 3 Weiss v Morrell, 58 N Y St Rep 315, 23 Civ Pro Rep ( N Y C P L)352 4 Jensen v Fricke, 133 111 171; Crosby v Kiest, 135 111 458 Compare Fisher v Commerce Nat Bank, 73 5 Thorn v Hess, 51 111 App 274 6 Browning v Paige, 7 How Pr ( N Y Supreme Ct)487 7 Culver v Felt, 30 How Pr ( N Y SupeRCt) 442, 4 Robt ( N Y)68 I 8 Maloney v Hunt, 29 Mo App 379 N Y Code Civ Pro, C 8, tit 6, art. 2, giving preferences to certain causes, is not exclusive, and does not limit the power of the courts over their calendar S It does not prohibit establishing a calendar for short cause S Weiss v Morrell, 7 Mis C Rep ( N Y C P I) 539, 58 St Rep 315, 23 Civ Pro Rep ( N Y) 352 A Call of the Docket and a setting of cases ready for trial for the third day thereafter are not violations of the Georgia statute which requires cases to be called in their ordeRSeifert v Holt, 82 Ga 757 9 Fisher z Commerce Nat Bank, 73 111 34; Angel v Plume, etc, Mfg Co, 73 111 412; Griswold v Shaw, 79 111 449; Braidwood v Weiller, 89 111 606; Benson v Johnson, 90 111 94; Nelson v Akeron, I 111 App 169; Smith v Lozano, I 111 App 176 Declinir^ Statutory Preference a Fa- voRA court cannot decline to prefer a cause entitled to preference by statute, nor dispense with the required notice of trial, except as a condition of granting a favoRHoneywell v Shaffer, 18 Civ Pro Rep (N/ Y City Ct) 3 36 Additional Term Called by Judge Justnes S Under Laws N Dak,f$ 10, C 79, it was held that at an additional term of court called by the judge the same business could be done, and the same cases noticed and placed upon the calendar as at the terms fixed by la W Smith v Northern Pac RCo, 3 N Dak 17 10 Maloney z/Hunt,29Mo App 379 II I PREPARATION OF CALENDAE 1 Generall Y The calendar or trial docket is prepared by the clerk a short time previous to the term, generally under the direction of the court, either from dockets in his office, showing what causes are at issue, or from notes of issue filed with the clerk pursuant to statutory provi- sion S 2 Arrangement and OrdeRThe arrangement, order, and pref- erence of cases upon the calendar are either the subject of local legislation or rule of court, or are under the immediate supervision of the judge or court.

Autor of the post: Undefined

3 Date of Issu e Post Date: Sat, 26 Jul 2008 5:14:21 +0000
1 Necessarily o N A cause is considered " necessarily " upon the calendar when, being at issue and ready for trial, it is put thereon for trial by the party who has noticed it for tria L 2 Effect of Amendment. Whether a cause properly remains on the calendar after an amendment of the pleadings changing the issues, and consequently the date of issue, is a question depending upon the peculiar wording of the local statute, or discretionary with the court. 3 Date of Issu e Where the place upon the calendar is determined 1 Benedict's Admiralty (3d e d) 598 Continuance from Term to Ter M In the absence of some act of the party plaintiff, disclosed by the record, causing a gap or chasm in the pro- ceedings, it will be presumed that the case was regularlycontinued from term to term, and that it properly appears upon the trial dockets thereof It is properlythere until finaljudgment.

Autor of the post: Undefined

2 N Y Post Date: Sat, 26 Jul 2008 5:00:25 +0000
Ex P Owens, 52 Ala 473; State S Temp- lin, 122 Ind 238; N Y Laws 1882, C 410; N Y Co N Act 1882 1082, 1083, 1084 Compare N Y Code Civ Pro, 794, 795, 797; Gorton v Bailey, 46 Wi S 633 (by virtue of statute). Remanded Caus e In jurisdictions where the calendar or trial docket is made by the clerk from the dockets of his office, under direction of the court, and is not controlled by notices of trial and notes of issue, a cause remanded from the appellate court for further action stands upon the calendar of the next term for trial of further action, if filed in time ; and if not so filed it stands continued by operation of la W Will- iams v Port, 9 Ind 551 In jurisdictions providing for a notice* of trial and note of issue to place a cause upon the calendar, upon the remanding of a cause for further action from the appellate court a new notice is necessar Y Hodges v Mus- pratt. 2 N Y Month L Bul L 67; N Y Co M P I, s P T 1880; Mead v Bill- ings, 43 Min N 239 2 Sipperly v Warner, 9 How Pr ( N Y Supreme Ct) 332, construing a code provision relating to term fees where a case is "necessarily" on the calendaR3 Notic e In New York, unless the court granting the permission to amend after issue joined otherwise orders, the plaintiff must serve a new notice of trial and file a new note of issue to place the cause upon the cal- endaR N Y Co M P L s P T 1880; Graham v Sterling In S Co, 2 N Y Month L Bul L 26 Amended Pleading Discretio N The issues made by the amended pleading control the place on the calendar, un- less the court in its discretion other- wise order S Black v Continental Nat Bank, 2 Abb N Ca S ( N Y Supreme Ct) 332 (it is a matter of discretion with the court).

Autor of the post: Undefined

Under Code Civ Pro Post Date: Sat, 26 Jul 2008 4:42:08 +0000
See also Myers v Metropolitan E L RCo ( C PL), 34 N Y St Rep 293, 19 Civ Pro Rep ( N Y) 448 Contra, Stevens v Curry, 10 Min N 249 Effect of DemurreRAn undetermined demurrer to part of an answer does not delay the placing of the cause upon the calendar for trial of the is- sues of fa Ct It is not necessary to wait for a decision on the issues of la W Palmer v Smedley, 13 Abb Pr ( N Y Supreme Ct) 185 by the date of issue and several issues appear, the oldest issue fixes the positio N 1 3 Preferenc e Preference upon the calendar is generally con- trolled by express statute or local rules of practic e* Cases Omitted by Partie S The court will not ordinarily depart from its established rules and put upon the calendar, after the commencement of the term, a case which the parties have omitte d 3 1 Allen v Calhoun, 6 Co W ( N Y) 32 2 New York Preference in New York is the subject of legislation in Code Civ Pro, 791, 792, 793 Preference Waive d Preference, un- der Code Civ Pro, 793, as amended in 1888, is waived by service of notice of trial without notice of preference, and the waiver is not cured by the sub- sequent service of a new notice of trial with notice of the motio N Fox v Quinn ( C PL), 12 N Y Supp 725 Action on Insurance Polic Y An ac- tion on a policy of fire insurance is not entitled to a preference under Code Civ Pro, 791, sub d 8 Wells v Watertown F In S Co, 21 Hun ( N Y) 4 09- Ground S A party claiming a pref- erence in the Court of Appeals must state such claim in his notice of argu- ment, and the grounds thereof Tay- lor v Wing, 83 N Y 527, I Civ Pro Rep ( N Y)43 See N Y Civ Code, 793, as amende d Wil L " An action for the construc- tion of or adjudication upon a will," to be entitled to preference, must be brought expressly for that purpose; it is not enough that the question is in- cidentally involve d Peyser v Wendt, 84 N Y 642 DoweRIn order for an action of dower to obtain preference on the calendar in the Court of Appeals, proof that the plaintiff "has no suffi- cient means of support, aside from the estate in controversy," must be made, and the preference allowed, before the service of the notice of argument. Bartlett v Musliner, 92 N Y 646 City Marshal S Actions against city marshals are not entitled to pref- erenc e Clark v Woodruff, cited in N Y Daily Reg, April i, 1878 Leas e Under Code Civ Pro, 791, sub d 8, a lease for a term of years is not " an evidence of debt for the absolute payment of mone Y" Philadelphia Steamship Dock Co v Lorillard Steamship Co, 54 How Pr ( N Y Supreme Ct) 508 Insurance Policie S Under the same subdivision an action on a matured life insurance policy is preferred after expiration of the time given by the terms of the policy for the payment of the sa Me Studwell v Charter Oak In S Co, 19 Hun ( N Y) 127 But see Guggenheim v Charter Oak L In S Co, i N Y Month L Bul L 51, and Wells v Watertown F In S Co, 21 Hun ( N Y) 409 For the preference of an action on a judgment against an insurance company, rendered in an- other state, see McArthur v Com- mercial F In S Co, 67 How Pr ( N Y City Ct) 510 Assessed Liabilit Y An action against a railroad corporation to recover the amount of interest coupons upon bonds issued by another similar cor- poration, based upon an agreement between the two companies by which defendant has become liable for their payment, is not entitled to preference under Code Civ Pro, 791 Polhemus v Fitchburgh RCo, 113 N Y 617, 21 N Y St Rep 933; neither do these facts appeal to the discretion of the court upon the question of prefer- enc e Goods Levied upon by Sheriff". Under Code Civ Pro, 791, sub d 10, en~ titling a cause to preference " by the special order of the court in the par- ticular case," the fact that the sheriff levied upon certain certificates of stock belonging to defendant, and in possession of another party, and that the certificates continue to be held under the attachment, is not such a showing as to justify the Court of Ap- peals in preferring the argument of the appeal over other cases on the general calendaRNichols v Steran- ton Steel Co, 135 N Y 634, 48 N Y St Rep 461 3 Tauziede v Jumel (Supreme Ct), 16 N Y Supp 377 Not Necessarily on the CalendaRThe Statutes of Preferenc e By virtue of its inherent power to control its own calendar the court may grant an order preferring cases, and statutes restricting this power are construed strictl Y 1 Waiver of Preferenc e The right to a preference may be waived ; and failure to strictly comply with all conditions precedent to secure the same will be deemed such waiveR2 4 Short Cause CalendaRStatutory provisions regulating preference are not exclusive, and do not prohibit courts from establishing a calendar for short cause S 3 5 Motion Concerning, to Whom Mad e Any application regard- ing the disposition of a cause upon the calendar must be made to the court, and not to a single justice thereof 4 Iv CAL L On the first day or term-day of each term the court or some member thereof, or the clerk under its or his direction, inquires publicly in open court as to what causes on the calendar or trial docket are ready for trial, and as to the disposition thereof 5 following cases have been held not necessarily on the calendar in New York: During the time the cause is re- served generally by consent, and not by order of court.

Autor of the post: Undefined

5 V I BRINGING FORWARD Post Date: Sat, 26 Jul 2008 4:28:49 +0000
Crawford v Kelly, joBos W ( N Y)6g7 After the cause has been referre d Anonymous, I Duer ( N Y) 651, 8 Ho W Pr ( N Y) 82 When there is no issue to tr Y Can- dee v Ogilvie, 5 Duer ( N Y) 658 After notice that plaintiff has aban- doned the suit. Jennings v Fay, i Code Rep, N S ( N Y C P I) 231 When not at issu e Livingston v Vieille Montagne Zinc Mi N Co, 4 Duer ( N Y) 681, 2 Abb Pr ( N Y) 255- In Court of Appeals until return file d Reformed Protestant Dutch Church v Brown, 24 How Pr ( N Y Supreme Ct) 89 When discontinued after tria L Drew v Comstock, 17 How Pr ( N Y Su- preme Ct) 469 After settlement of parties unknown to attorne Y Latham v Bliss, 13 How Pr ( N Y SupeRCt) 416 1 Smith v Keepers, 5 Civ Pro Rep ( N Y Supreme Ct)66; Honey- well v Shaffer, 18 Civ Pro Rep ( N Y City Ct) 336 Request of Attorne Y When cases are given preference upon the calendar according to date of issue, in cases presented by the same attorney where issues are simultaneous, the direc- tion of the attorney as to preference should be followe d McBride v Ellis, 8 Rich ( S Car) 226 2 Fox -v Quinn ( C p), 12 N Y Supp 725; Manhattan Co v Dunn, 13 Civ Pro Rep ( N Y Supreme Ct) 166 (Lawrence, J); Taylor v Wing, 83 N Y 527; Roberts6n v Schellhaas, 62 Ho W Pr ( N Y Supreme Ct)48 g Remedy for Refusal of Preferenc e The remedy for the refusal to grant a preference upon the calendar to which a party is entitled as of right, as by provision of statute, is by mandamu S Hays v Consolidated Gas Co ( Ct App), 60 N Y St Rep 480 3 Weiss v Morrell, 7 Mis C Rep ( N Y C P I) 539- 4 St Lawrence Wholesale Grocery Co v Hobson, 63 Hun ( N Y) 458, 44 N Y St Rep 738; North v Sargeant, 14 Abb Pr ( N Y Supreme Ct) 223 5 Anderson Law Diet 145 See Blanchard v Ferdinand, 132 Mas S Judge Interested Calling CalendaRA judge interested in the subject-mat- ter in litigation may call and arrange the calendar, including the cause in question, or change the venue; but he cannot proceed further relative to such actio N In re White's Estate, 37Cal190 In this case the judge of probate held a power of attorney from certain persons claiming to be heirs at law of the deceased; he had also received a letter from these persons offering him Duty of Attorney to Atten d It is the duty of the attorney to attend the call of the calendaRAbsence on important business will form no ground fora new trial if the cause is called for immediate trial in his absenc e 1 Errors in Call Waive d All errors in the call or trial of a case out of its order are waived by going to trial without objectio N 2 v CORRECTING ERROR S A cause erroneously entitled upon the docket will be corrected on motion when the error is manifest from the pleadings of the partie S 3 Correct Promptl Y Motions to correct the calendar must be made promptly, generally on the call the first day of the term, 4 and to the court. 5 V I BRINGING FORWARD AND TRANSFERRING ON SAME CALENDAR 1 Generall Y In the absence of express and positive statutory provisions to the contrary, it is not necessary that the trial of cases shall be in the order in which they are placed upon the calendaRPrecedent cases may be continued or placed at the end of the calendar, or other definite disposition made of them, and subsequent cases may be then regularly taken up and trie d a percentage upon the proceeds of said estate, upon a settlement thereof, and the proceedings were instituted upon the advice of the judge in questio N Georgia The calling of the cases from the docket and setting those ready for trial for a hearing three days thereafter, is not a violation of the statute of Georgia requiring the cases to be called in their ordeRSiefert v Holt, 82 Ga 757 1 Wilson v Scott, 50 Mo App Regularity of Cal L Attorneys and parties are not obliged to be continu- ally in court to watch against an ir- regular call of the docket.

Autor of the post: Undefined

" Jensen v Fricke, 133 111 Post Date: Sat, 26 Jul 2008 4:16:45 +0000
It should not be called out of the usual course, in the absence of a rule of record au- thorizing it. Kilian -v Clark, 9 111 App 426 2 Cleaver v Webster, 73 111 607 3 Gillespie v Redmond, 13 Tex 9 An Action Erroneously Placed upon One Docket when it should have been upon another will not be dismissed, but transferred to and placed upon the proper on e Harris v Lowe, 81 Ga 678 See Transfer to Another Calen- dar, infr A 4 Anonymous, 28 How Pr ( N Y Supreme Ct) 394 5 North v Sargeant, 14 Abb Pr ( N Y Supreme Ct) 223 6 Green v Bulkley, 23 Ka N 130; Lincoln v Staley, 32 Neb 63; Smith v St Louis Third Nat Bank, 79 111 118; Womack v Bookman, 34 Ala 38; Whitney v Thayer, 5 Pic K (Mas S) 528; Browning v Bancroft, 8 Met (Mas S) 278 Arkansa S In the absence of any statutory provision especially author- izing it, or showing that any depart- ment of government will be embar- rassed by delay, a suit by a bishop of a Catholic church, to whom realty has been devised, to apply the income in maintaining a hospital, for an injunc- tion restraining the county clerk from extending taxes against said real es- tate, will not be advanced on the calen- dar out of its regular ordeRExplain- ing the practice in Arkansas in the matter of advancing causes on the calendar, see Brodie v Fitzgerald, 55 Ark 460 Florida The fact that a municipal- ity and a taxpayer are parties to a litigation involving municipal taxes is not a ground for advancing it on appeal on the taxpayer's applicatio N Spratt v Jacksonville, 29 Fla 171 Illinois Act of June i, 1889" The Illinois Act of June I, 1889, creating a short cause calendar and providing for reaching causes ahead of the regular calendar, operates upon cases pend- ing, whether they are commenced be- fore or after it came in force; and pro- vides for ample notice to be given, and preserves to the defendant every right he would have had had his cause remained upon the general 2 Short Cause CalendaRA statute providing for a short cause calendar, upon which the plaintiff may have a cause placed under docket." Jensen v Fricke, 133 111 171, holding that this statute does not repeal 111 Rev Stat1889, C no, 17, providing "that causes shall be tried in the order they are placed upon the docket, unless the court, for good and sufficient cause, shall otherwise di- re Ct" Five-day Riil e One of the rules of practice adopted by the Superior Court of Cook County was as follows: " Ordered, that in any case ex con- tractu pending on an issue or issues of fact only, or only requiring ihesimiliter to be added, which is noticed for trial at any term if the plaintiff, or an at- torney or agent of the plaintiff, shall make an affidavit that he or she be- lieves that the defense is made only for delay, the plaintiff, by giving the defendant's attorney, or the defend- ant if he or she do not appear by at- torney, five days' previous notice, with a copy of such affidavit that the plain- tiff will bring on said case for trial at the opening of the court, on a day of such term to be specified in such notice, or as soon thereafter as the court will try the same may proceed to a trial at the time specified in said notice, unless it shall be made to ap- pear to the court, by affidavit of facts in detail, that the defense is made in good faith, when the case will remain to be tried in its regular order on the trial calenda R" The foregoing rule, called the five-day rule, being incon- sistent with the established rules of practice and the laws of Illinois, was held to be voi d Fisher v Commerce Nat Bank, 73 111 34; Angel v Plume, etc, Mfg Co, 73 111 412; Griswold v, Shaw, 79 111 449; Braidwood v Weil- ler, 89 111 606; Benson v Johnson, 90 111 94; Nelson v Akeson, i 111 App 169; Smith -v Lozano, i 111 App 176; Sea v Glover, T 111 App 340 Good and Sufficient Caus e "Whether there is good and sufficient cause for trying a cause otherwise than in the order in which it is placed on the docket, as provided in 17, Practice Act, is a question for the court.

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