(dissenting in part).
I disagree with the last paragraph of the foregoing opinion. The appellee has never had a ehanee to argue the ease orally on the merits, and it is entitled to one if it desires it (Rule 25). The discussion at the time when the application for leave to appeal was presented cannot fairly be regarded as an “argument,” as that word is used in legal proceedings. No discussion of the merits was open or was called for, on the papers then before the court. There was nothing to argue on— no record of the proceedings in the lower court, and no statement of facts except an ex parte statement not under oath made by the appellant. The appellee had no notice that the merits were to be discussed, no opportunity for preparation, and no reason to believe that the merits would be gone into. Its counsel remonstrated against being forced into a discussion of them. On the equities of the matter, as far as I can gather them, I see no occasion for extraordinary disregard of settled rules of procedure in the interest of the appellant. In my opinion the matter should stand for hearing in due course.