The petition for rehearing in this case is predicated upon the averment that subsection 9 of section 5033, Revised Laws of Oklahoma 1910, was not called, by brief of plaintiffs in error, to the attention of the court, and was overlooked by the court.
Subsection 9 of said section 5033 reads:
"When without fault of complaining party, it becomes impossible to make case-made."
It is true that subsection 9 of section 5033 was not called to the attention of the court, but in fact was not overlooked by the court. The facts of the petition under review show conclusively that subsection 9 has no field of operation in the instant petition, as said subsection relates alone to making a case-made. In the instant case, the case-made was not only made, but duly certified by the trial judge and attested by the clerk under seal of the court, and lost in the mail while in transit from one to another of the plaintiffs' attorneys.
The misfortune of being denied a review of this cause upon its merits, that comes to the plaintiffs in error, is not "due to the impossibility of making the case-made," but *Page 304 failure to file the case-made together with petition in error in this court within the statutory time, due to the fact that plaintiffs in error had two sets of lawyers, residing in different towns, each of whom relied upon the other to file said case-made and petition in error in this case. We are not informed, and have not been directed to any law, that, under the facts of said petition, that subsection 9 of section 5033 could be invoked as entitling the plaintiffs in error to a new trial in this case. Failure to secure a review of this case upon its merits may work a hardship, but with this we have nothing to do. We are to construe, but not make, laws.
Finding no grounds upon which a rehearing in this case should be granted, petition for rehearing is hereby denied.
By the Court: It is so ordered.