RODMAN, Justice.
Preliminarily we are confronted with the contention that Judge Phillips had no right to act on the motion, because defendant had no prior notice. The contention is without merit. The motion was made at the term at which the cause was calendared for trial. Before the jury was empaneled, the parties suggested to the court: "that a Pre-Trial Conference was necessary in order for the Court to pass on various motions and points of law raised by the pleadings...
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