Saylor v. State

On Rehearing

Appellant has filed an application for rehearing and has attached thereto a certificate of the clerk below. The certificate states, in effect, that an order extending the time for filing the transcript appears on record in the office of said clerk. No such order appears on the record upon which the cause was submitted.

The only relief prayed for in the application for rehearing, and in the brief accompanying the application, is a rehearing by this court. In effect, we are asked to set aside submission and judgment, and to consider the record as though corrected by certiorari.

The record was filed in this court on October 8, 1964.

On December 11, 1964, the attorney general filed a motion to strike the transcript of the evidence because not filed with the clerk below within the time required by law. This motion was accompanied by a certificate that a copy was mailed, properly stamped, and addressed to appellant’s counsel on December 11, 1964.

This appeal was submitted in this court on the motion to strike, and on the merits, on January 14, 1965.

Our opinion was rendered on March 9, 1965. No reply to the attorney general’s motion had been filed in this court up to this time.

A party is not entitled as a matter of right, on an application for rehearing, to a certiorari to correct defects in the record. Lipscomb v. State, 37 Ala.App. 379, 68 So. 2d 862; Clark v. State, 8 Ala.App. 105, 62 So. 987; Rushing v. State, 40 Ala.App. 361, 113 So.2d 527.

Generally, an attempt to correct the record after final disposition comes too late. *668Lipscomb v. State, supra; Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90; Harris v. State, 39 Ala.App. 99, 94 So.2d 884.

Although counsel was apprised of a diminution of the record by the attorney general’s brief and motion to strike, he made no attempt to invoke the process of this court to supply the omission before final disposition.

To grant the relief here sought would tend to encourage carelessness in appellate procedure and unduly prolong litigation. See Lipscomb v. State, supra. Without deciding the propriety of the method employed to correct the record, we conclude that the attempt to do so came too late, and that, therefore, the application for rehearing must be denied.

Application for rehearing overruled.

PRICE, P. J., not sitting.