On the original submission, appellant's counsel complied with Supreme Court Rule 13 by filing a brief and serving same with proper certificate upon the Attorney *Page 539 General. The Attorney General failed to comply with Supreme Court Rule 38, which provides: "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."
The appellant makes motion to dismiss the application for rehearing, and cites in support thereof Riley et al. v. Louisville N. R. Co. 18 Ala. App. 279, 92 So. 23, and Louisville N. R. Co. v. Bishop, 17 Ala. App. 320, 85 So. 859, both of which cases are in point.
In the recent case of Swan Williams et al. v. State, ante, p. 525, 175 So. 697, the Attorney General invoked the rules of practice in this court, and in the State's contention in those cases this court agreed with the Attorney General. While there is some discretion in applying Supreme Court Rule 38, such discretion should not be used so as to destroy the force of the rule. "We cannot make fish of one and fowl of the other."
The application for rehearing is dismissed.
Application dismissed.