(dissenting.) Section 277 of the Practice Act provides that the hearing of appeals shall he noticed for the first day of the term by a notice of at least four clays and may be noticed and brought on by either party. The twelfth ride of this court declares, that when the cause shall be called cm the calendar, if the appellant shall not appear, the respondent may move for an affirmance of the judgment, and if the respondent *335does not appear, the appellant may proceed in the argument ex parte. The appellant in this case gave the notice of argument required by the statute, hut the respondent did not; the cause was called on the calendar, and the respondent moved, under the rule, for an affirmance of the judgment. His motion should he denied. The statute and rule of court should both be construed together, and the meaning of both is, that the appellant may notice the cause and bring it on, and, if the respondent fail to appear, may proceed in the argument exparte; and that the respondent may notice the cause and bring it on, and, if the appellant fail to appear, may move for an affirmance of the judgment. By the statute and rule both parties are regarded as actors, so that either can, upon the performance of a certain act, that is, giving the adverse party notice of argument, have the cause called on and disposed of according to the terms of the rule. But the fact of each party being an actor and entitled to give notice of argument, precludes the respondent from moving the cause unless lie has noticed it. He is in the same condition, in this respect, as if neither party had noticed the cause. The practice in bringing on the argument of appeals was intended to be the same, and is made the same by statute, as the moving a cause for trial in the district court. Section 137 of the Practice Act provides, that, at any time after issue, either party may give notice of trial; and section 152 provides that either party, giving the notice, may bring the issue to trial, &e. This is just as clear an expression of the will of the legislature, as if that body had said that neither party shall be in a condition to bring the issue to trial, without having first given such notice. The practice is the same in bringing on an appeal; either party may notice and bring on the cause; and if he neglect to give the notice, so plainly required by the statute, it is his own fault. The appellant, by giving notice, does not waive his right to receive notice: by performing an act required of him by the statute, he ought not to be deprived of a right given him by the statute. The practice where these cross notices are permitted or required, is perfectly well settled in conformity with the views above expressed, and I must therefore dissent from the majority of the court.