This is a civil action. Plaintiff’s attorney presents an order providing for the dismissal of the action and the complaint therein without prejudice and without costs, together with a notice of motion returnable April 5th, 1939, with proof of service of a copy thereof upon the attorney for the defendant.
Upon the return day of said motion, only bankruptcy matters were heard, consequently this motion has never appeared on the calendar, the defendant has not had an opportunity to be heard, and I am without any knowledge whether he would oppose or consent that the motion be granted.
This action must either be disposed of upon stipulation, or it may be brought on the regular Tuesday or Friday motion calendars. See Rule 41(a) Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The proposed order is returned to the clerk unsigned.