On the insistence of appellee, this cause has been submitted on appellee's motions under Supreme Court Rule 17 which recites as follows:
Appellee has filed three motions, to wit:
1. "MOTION TO DISMISS APPEAL," which appears to rest on three grounds. The first ground appears to be that a settlement agreement was entered into by the parties on August 28, 1962; that said agreement was ratified and affirmed by the court on said date; that said agreement settled all equities; that no application for rehearing was filed within thirty days; that appellant's motion "to set aside the decree" was not filed until October 5, 1962; that there has been no appeal from the "decree" of August 28, 1962, and more than six months have elapsed; and that appellant has undertaken to appeal from a decree of December 7, 1962. The second ground is that the appeal is from a consent decree and the assertion that "a consent decree will not support an appeal." The third ground is that the decree appealed from is a decree denying appellant's motion to set aside the decree and the assertion that such an order "will not support an appeal."
2. "MOTION TO STRIKE DEMAND FOR ORAL ARGUMENT," which recites as follows:
3. "MOTION TO STRIKE ASSIGNMENTS OF ERROR," wherein appellee asserts that, under Rule 1, the assignments are insufficient to invite review.
Rule 17 provides that if counsel for appellee shall be of opinion that "the appeal was brought * * * merely for delay, he may file * * * his statement * * * to that effect." (Italics supplied.) The rule further provides that if appellant fail to deny "such fact," the clerk shall forthwith submit the record to the court, etc. Appellant has denied the allegation that the demand for oral argument was made solely for delay.
Nowhere in the motions have we found a reference to Rule 17 or a charge that the appeal was brought merely for delay.
Rule 17 does not authorize accelerated submission on the ground that demand for oral argument was made solely for delay. The rule authorizes early "examining the record" when "the appeal was brought * * * for delay." The rule authorizes nothing when "demand for oral argument * * * was made solely for * * * delay."
Because appellee's motion to strike demand for oral argument is not authorized by the rule, that motion is denied.
The motion to dismiss does not rest on the ground specified in Rule 17. Neither that motion nor the motion to strike assignments
The case will stand for argument in its regular order on the call of the first division.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur.