By the Court

The Appellant moves to strike this case from, the calendar, on the ground that it has been prematurely placed there by the Respondent. The return was not filed until after the opening of the present term. The Respondent had however noticed the case for argument ten days before the first day of term, and placed it upon the calendar for hearing. The question presented is, whether a notice of argument given before the filing of the return in this court is regular. The point has been decided by us in the case of the Commonwealth Ins. Co. vs. Pierro, 9 Minn. Rep., 569. In that case the return was not filed ten days before the first day of term. The Respondent wishing to move to dismiss the appeal, gave notice of the motion for some day in the term after the first. The objection was made by the Appellant that it came too late, and should have been for the first day of the term. We held that as the return was not filed ten days before the term it could not have been noticed for argument, and the motion for dismissal made upon such notice, and therefore was properly noticed for a day after the first.

The notice of argument was.premature, and the motion to strike from the calendar is granted.