The intervener has petitioned for a rehearing of this case upon the ground that, without his fault, he has been denied an opportunity of presenting an argument on the merits.
He moved to dismiss the appeal upon the ground that notice thereof had never been served upon him. This motion was of course preliminary to any hearing upon the merits, but was presented at the same time that the cause was set for hearing. By leave of the court the motion was submitted upon briefs to be filed, but the appellant went on with the oral argument of the appeal on his part.
The claim of the intervener that he was not a party to the appeal was such that he could not very consistently participate in the oral argument on the merits, and besides he had never been served with the appellant's brief, although under our rules he was, if a party respondent, entitled to be served. At all events he made no attempt at that time to reply, but when subsequently he filed his brief upon his motion to dismiss he added the following paragraph: —
"We have not, even up to this time, been served with a copy of appellants' brief on the appeal of this case. If it be possible that the court shall disagree with us in our contention on this motion we shall, of course, be entitled to an order of this court that said brief be served and that we have the usual time for answering it. It is submitted, however, that the only action this court can take under the authorities cited in this brief, is to dismiss this appeal."
Notwithstanding this request, which in my opinion was under the circumstances entirely proper, the cause has been *Page 609 decided at the same time that the motion to dismiss is overruled, and without any leave to intervener to file his brief. I think such leave should have been granted.