Roberts v. Aden ( 1886 )

McAdam, Ch. J.

The Code allows to either party “ for all proceedings, after notice of trial and before trial, $15” (Code, § 3251). The defendant noticed the cause for trial, but the plaintiff did not. The cause never appeared' upon the calendar, and was finally dismissed for want of prosecution. The clerk has refused to tax this $15. This was error. The defendant did all the statute required him to do to entitle him to the $15. • He noticed the cause for trial, and presumably searched the calendar, and watched the subsequent progress of the case. The plaintiff was the aggressive party and should have pressed his suit. His failure to put the case on the calendar and bring it to trial should not militate against the defendant, who, while on the defensive, took the necessary steps to preserve his rights. ’ ,

The item of $15 will be allowed.-