Rehearing denied.

(dissenting).

The parties hereto filed a stipulation with the clerk of the court below, which provided: “It Is Stipulated that the above entitled action may be dropped from the trial calendar to be restored upon notice of motion to be served upon counsel for the parties.”

The opinion herein followed Dillon v. United States (C.C.A.9) 29 F.(2d) 246. In that case there was a stipulation which was not filed, and the clerk therefore had no notice of pending proceedings. That case, therefore, is not in point.

I believe Fidelity & Deposit Co. of Maryland v. MacGruer (C.C.A.9) 77 F.(2d) 83, to be directly in point. In that case an order of reference had been made, *866but nothing further appeared in the clerk’s files. The order of reference was considered to be sufficient notice to the clerk of pending proceedings. I bélieve the stipulation herein imparted as much notice to the clerk as did the order just mentioned, and since there actually were “pending proceedings,” the order of dismissal should be vacated.

The petition for rehearing should be granted.