The rendition of the judgment in the foregoing case was had on the 3d day of November, 1936.
Application for rehearing was filed on November 19, 1936.
On November 27, 1936, appellant filed his motion to strike the application upon the following grounds:
"Motion to Strike Application for Rehearing. "Now comes the appellant in the above styled cause, by his attorneys, and moves the Court to strike the application for rehearing filed by appellee, and for grounds of said motion sets down and assigns the following: —
"1st: For that said application for rehearing comes too late.
"2nd: For that more than fifteen days had elapsed from the date of the decision in this case by this Court before said application for rehearing was filed.
"3rd: For that this Court rendered a judgment reversing and remanding this case on the 3rd day of November, 1936, and the application for rehearing was not filed until the 19th day of November, 1936.
"4th: For that this Court entered a judgment reversing and remanding this cause on the 3rd day of November, 1936, and a copy of the application for rehearing was not served on appellant, or his counsel, within fifteen days after said date.
"5th: For that this Court entered a judgment reversing and remanding this cause on the 3rd day of November, 1936, and the application for rehearing was not served on appellant, or his counsel, until to-wit, the 21st day of November, 1936.
"6th: For that the appellee failed or refused to file a brief on the questions involved in the decision of this case upon the original submission, thereby declining to give the Court the benefit of their views."
The grounds stated in the motion aforesaid being well taken, the application for *Page 331 rehearing was duly stricken by this court on December 15, 1936.
On December 17, 1936, the state, through the Attorney General, filed a "petition to vacate order striking appellee's application for rehearing and to reinstate said application."
Supreme Court Rule 38, expressly provides: "All applications for rehearing must be flied with the clerk of the court, accompanied by brief for the applicant and a certificate of counsel that a copy of such brief has been delivered to opposite counsel, within fifteen days after the rendition of the judgment, * * * and that, no such application shall be received or filed which is not presented in strict compliance with this rule."
The averment in the foregoing petition to the effect that said application for rehearing was filed within fifteen days is not borne out by the record. The facts set forth in the petition as to the filing of said application does not constitute a filing as contemplated by law and the decisions of the appellate courts of this state. In re State ex rel. Attorney General, 185 Ala. 347, 64 So. 310, 311. In said case the court, among other things, said: "As appears, the unqualified requirement of the rule is that applications for rehearing 'must be filed with the clerk * * * within fifteen days after the rendition of the judgment.' Manifestly the posting of an application, properly addressed, is not a compliance with the rule. It must be filed within the period stipulated. The mail must and could only be the agent or agency of the party applying for rehearing. If there be delay in the transmission of the application by the mail, however free from fault or negligence the applicant may have been, it cannot be said that he has complied with this very necessary and wholesome provision of the rule. In mailing or otherwise transmitting the application, the chance of miscarriage or delay is a contingency, the happening of which the applicant must assume. Such miscarriage or delay will rarely occur; but when they do it [not] cannot be affirmed that seasonable, proper posting answers the prescription of the rule. This application for rehearing was so seasonably and properly posted as that in due course it should have reached the clerk on July 4, 1913, the last day, fifteenth day, on which it could have been seasonably filed with the clerk. It did not reach him within time."
Moreover, the mere filing of the application for rehearing within the stated period is not the only prerequisite for its consideration. The rule, supra, makes it mandatory also, that the application for rehearing must be accompanied by brief for the applicant and a certificate of counsel that a copy of such brief has been delivered to opposing counsel, within fifteen days after the rendition of the judgment. This was not done, as affirmatively appears in the petition to reinstate now under consideration. Paragraph 2 of said petition reads as follows: "2. Petitioner further avers that when corrected copies of the said application for rehearing and the brief and argument in support thereof had been returned to the Office of the Clerk of the Court as alleged above, Mr. Garrett, of counsel for appellee, caused a copy thereof to be that day mailed, postage prepaid, to Mr. Ernest Matthews, of counsel for appellant, whose proper Post Office address is Birmingham, Alabama." It is admitted in said petition, and no contention to the contrary appears, that the service upon opposing counsel was not even mailed until after the expiration of the period of fifteen days. In this connection it affirmatively appears that the service had upon opposing counsel was on December 21, 1936, which was several days after the requisite time had expired. In re State ex rel. Attorney General, 185 Ala. 347, 64 So. 310, supra. See, also, Ex parte State ex rel. Breitling, 221 Ala. 398,128 So. 788; Taylor v. Lunsford, 26 Ala. App. 127, 129,154 So. 608; Grand Lodge, K. P. of North America v. Walker,26 Ala. App. 132, 154 So. 827; Shirey v. State, 18 Ala. App. 109,110-112, 90 So. 72; Ex parte Shirey, 206 Ala. 167, 90 So. 75; Ex parte Locklear, 205 Ala. 236, 87 So. 712. The decisions on this identical proposition by the appellate courts of this state are innumerable, and other than those cited herein, need not be here referred to.
After a full consideration the court must, therefore, decline to disturb its order of December 16, 1936, striking the application for the reasons stated.
Petition denied. *Page 332