ON PETITION FOR REHEARING On February 11, 1937, the judgment of the lower court was affirmed on the assignment of errors presented by the appellant. On the same date said judgment was affirmed on the cross-assignment of errors presented by certain of the appellees named and designated in the original opinion, upon the ground that the record of the lower court upon which said cross-assignment of errors was founded was not properly certified *Page 624 and that therefore no question was presented for our consideration by the cross-assignment of errors.
On March 31, 1937, the appellant filed his petition for a rehearing. On April 1, 1937, he filed his brief in support of his petition for a rehearing. On April 10, 1937, the appellees Thomas H. Seward, Oscar Phillips, Luther Pulley, Dr. J.C. Knight, Dr. J.T. Barnett, for themselves and all other like creditors, as depositors of the Citizens State Bank of Jonesboro, Indiana, filed a petition accompanied by briefs for a rehearing on their cross-assignment of errors. On April 16, 1937, these same appellees filed a motion to dismiss appellant's petition for a rehearing upon the ground that appellant failed to comply with rule 29 of this court in that his petition for a rehearing and briefs in support thereof were not filed at the same time. On the same day the same appellees filed a motion to reinstate their appeal upon their cross-assignment of errors. On April 23, 1937, the appellant filed a verified counter showing to said appellee's motion to dismiss his petition for a rehearing, together with briefs in support thereof.
The petition of the appellees, Thomas H. Seward et al., to reinstate their appeal on the cross errors assigned by them and their petition for a rehearing on their cross-errors are both hereby denied.
In support of their motion to dismiss the appellant's petition for a rehearing the appellees cite and rely upon the case of Fort Wayne, etc., Co. v. Davis (1929), 90 Ind. App. 30, 165 12. N.E. 764. The facts in that case and the case at bar in so far as they relate to the filing of the petition for a rehearing are so similar that they cannot be distinguished and were we inclined to follow the precedent established by that case we would be required to sustain the appellees' motion.
Section 2-3236 Burns 1933, § 509 Baldwin's 1934, provides *Page 625 that when any cause is determined in the Appellate Court, the clerk shall forthwith notify the clerk of the court below that it is determined, and, "at any time within sixty (60) days after such determination, either party may file a petition for a rehearing."
Rule 29 of this court provides that: "Application for a rehearing of any cause shall be made by petition, separate from the briefs, signed by counsel, filed with the clerk within sixty days from the rendition of the judgment, stating concisely the cause for which the judgment is supposed to be erroneous, which application shall be supported by briefs only, with argument set out therein, if desired. Ten copies of the brief must be filedat the same time the petition is filed, and one copy of the brief shall be delivered at once by the clerk to each judge." (Our italics.)
Appellees insist that that phrase in the rule above which we have italicized requires the briefs in support of the petition for rehearing to be filed on the same day, and at the same time that the petition for rehearing is filed, and the case above cited so holds. By the provisions of Sec. 2-3236 (§ 509 Baldwin's 1934), supra, litigants are given sixty days from the date of the determination of a cause in which to file a petition for a rehearing. Rule 29 outlines the procedure to be followed in filing such petition within the sixty day period. We do not think the phrase "Ten copies of the brief must be filed at the same time the petition is filed" should be interpreted to mean that the petition and briefs must be filed on the same day, but that it must be interpreted to mean that the petition for rehearing must be filed within sixty days from the date of determination of the cause and that the briefs in support thereof must be filed within the same period of time and not after the sixty day period of time from the date of *Page 626 determination of the cause has elapsed. That is to say that under the statute and rule of this court litigants have a period of sixty days from the date on which a cause is determined in which to file a petition for rehearing and briefs in support thereof; that the petition for a rehearing can be filed at one time and the briefs in support thereof can be filed at another time, but they must both be filed "at the same time," to-wit, within the sixty day period. The interpretation and application which this court made of rule 29 in the case of Fort Wayne, etc., Co. v.Davis, supra, is too strict and technical and if adhered to, would deprive litigants of the right granted to them by Sec. 2-3236 (§ 509 Baldwin's 1934), supra, and rule 29, to file petitions for rehearing at any time within sixty days from the date a cause is determined by this court, and in so far as that case conflicts with the views here expressed it is overruled. The motion of the appellees, Thomas H. Seward et al., to dismiss appellant's petition for a rehearing is overruled. All members of the court are in harmony on the above rulings.
Appellant's petition for a rehearing is denied.
Judges Bridwell and Curtis are of the opinion that appellant's petition for a rehearing should be granted and therefore dissent from the ruling of the majority of the court in denying appellant's petition for a rehearing. *Page 627