Helm

This is an appeal from an order vacating an order of dismissal of a complaint stating a cause of action against the United States Fidelity & Guaranty Company on its automobile liability and property damage insurance policy, pursuant to which certain obligations for injuries to plaintiff’s person and property had been incurred by the defendant. This dismissal was made by the court on its own motion under rule 38 of the District Court for the *547 Northern District of California, reading as follows:

“Rule 38. — Dismissal for Want of Prosecution Generally.

“Causes, which have been pending in this Court for more than one year without any proceedings having been taken therein during such year shall be dismissed, as of course, for want of prosecution by the Court on its own motion, at a general calling of a calendar at the beginning of a term prepared for the purpose by the Clerk. * * *”

The case was at issue and had been set down on the trial calendar for the 23d day of August, 1932. On the 20th day of August, 1932, the case was dropped from the calendar by stipulation signed by both parties, as follows:

“The plaintiff being desirous to take the deposition of witnesses absent from…