In brief, on application for rehearing, counsel for appellee makes this statement: "I have been honest in facing the issues squarely as I have always been notwithstanding that uncalled for statement in the opinion, that 'A position is attempted to be established by uncertain, unsupported, and unreasonable testimony should not be sustained against proof of contrary facts if the latter find support in dependable, corroborative, trustworthy, and reasonable testimony.' I have never over a long and honorable career at this bar and at the bar of this state and in a public capacity done or attempted to do anything that smack of an attempt to establish a position in any case by 'uncertain, unreasonable and unsupported testimony.' "
The portion of the opinion is not accurately quoted, as will be observed by comparison. However, we were simply commenting on the solemn duty of the court when faced with a situation where a verdict is sought to be sustained on evidence that is "uncertain, unsupported, and unreasonable," when against this position there is proof of facts that are "dependable, corroborative, trustworthy, and reasonable."
It appears to us that this should be the fair construction of what is stated in the opinion. Since counsel places upon it an entirely different meaning, out of deference to him we do not hesitate to say that this court, and particularly the writer of the opinion, did not intend to cast or suggest any personal reflection on the attorneys in the case. In fact, no such idea or thought ever entered the mind of any member of this court.
What we have said above is only in explanation of the misconception of our original opinion.
We come now to consider the application for rehearing.
This appeal was submitted in this court on November 29, 1946. At this time appellant filed a brief with certificate that a copy of same had been served upon opposing counsel. On February 10, 1947, attorney for appellee filed a reply brief, but without certification that a copy of same had been served on counsel for appellant. The opinion in the cause was handed down on March 11, 1947. On March 25, 1947, attorney for appellee filed in this court an application for rehearing accompanied by brief for the applicant, but without a certificate of counsel that a copy of such brief had been delivered to opposing counsel.
Supreme Court Rule No. 38, Code 1940, Tit. 7 Appendix, provides:
"All applications for rehearing must be filed 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 opposing counsel, within fifteen days after the rendition of the judgment whether such period extends beyond the term of the court or not; and such application may be passed upon at any regular or special term of the court. No application shall be received or filed which is not presented in strict compliance with this rule, and no second application shall be received or filed in any case. Without the order of the court or a justice thereof, the pendency of an application for rehearing shall not stay or suspend the execution of the judgment of the court. No appellee can, as matter of right, apply for a rehearing unless brief was filed with the clerk upon the original hearing within fifteen days after submission of the cause containing a certificate that a copy of same was served within said time upon counsel for appellant. An extension of time for filing such brief by any justice upon request *Page 81 of counsel will not suspend this rule so as to entitle the appellee to apply for a rehearing unless a brief was filed within fifteen days as above provided. This rule shall not apply in criminal cases except when the appellant files a brief upon submission of the cause."
An examination of the history of this appeal will clearly indicate that the above rule has not been observed. It follows, therefore, that the application for rehearing must be stricken. It is so ordered.
Application stricken.