Application to file a second petition fob beheabing [Denied May 27, 1936],
Per Curiam:On March 24,1936, counsel for appellee in the above. case filed with the clerk of the court a paper entitled “Petition of Appellee for Rehearing and Memorandum in Support Thereof.” On April 2, 1936, counsel for the Government filed a motion to strike the petition, alleging its violation of rule VII of this court. Counsel *388for appellee requested permission to reply to tbe Government’s motion but tbe request was denied, tbe court exercising its discretion in that regard.
Rule VII reads:
A petition for a rehearing of any canse submitted to this court may be filed in the clerk’s office at any time within 20 days from the date of final decision therein, unless further time be- granted by the court or a judge thereof. Such petitions shall be printed and served upon opposing counsel in the same manner provided herein for briefs, and 15 copies thereof shall be filed with the clerk. The petition in each case shall be confined to a brief statement of points supposed to have been overlooked, or misapprehended by the court, with proper references to the particular portion of the transcript of the record or original briefs relied upon, and with authorities and suggestions, concisely stated, in support of the points. The opposing party may at any time within 10 days thereafter, unless further time be granted, file with the clerk his objections to the granting of said petition, which shall be printed and served in a like manner as said petition, and the question shall thereupon be deemed submitted for decision: Provided, That if the party resides west of the Rocky Mountains there shall be allowed 10 days additional time for filing said petition or objections. Argumentative matter in the petition or in the objections to the grant thereof will not be permitted. Any petition or objection violating this rule will be stricken.
Wben tbe court came to examine tbe petition it was found that it ■did not conform to tbe requirement of that part of tbe rule wbicb states tbat tbe “petition * * * shall be confined to a brief statement of points supposed to bave been overlooked or misapprehended by tbe court * * *.”
What may be regarded as tbe petition proper occupied a single page, but it was general in terms asking simply “for a rehearing of this cause, and for a reconsideration of tbe decision herein as rendered by this Court March 2nd, 1936.”
It was then added:
The reasons for and in support of this petition are set forth in the annexed memorandum, which is referred to and made a part hereof.
The “annexed memorandum” comprised approximately twenty-nine printed pages. Tbe first six pages embraced matter under tbe beading of “Preliminary Statement.” In this part was included what counsel called an “imaginary statement”, setting forth “our understanding of tbe views and tbe present attitude of tbe majority members of this Court.” This “imaginary statement” was so worded as to render it, putting tbe matter mildly, in extremely bad taste, and it and other statements and implications in other parts of tbe memorandum were of doubtful propriety.
Ten points, purporting to be points of law, were printed in black face type. It was not alleged, however, tbat they bad been overlooked, except that as to point 10 it was said tbat certain considerations bad evidently “been overlooked” by “at least two of tbe judges.” As to tbe other points it was assumed by us that tbe purpose was to *389allege either overlooking or misapprehending upon our part; but in plain violation of that part of the rule which reads, “Argumentative matter in the petition * * * will not be permitted”, the memorandum contained page after page of pure argument, interspersed after each point.
The paper being so clearly, even flagrantly, violative of rule VII, the court felt constrained to take the unpleasant course of sustaining the Government’s motion to strike. It was so ordered, but out of consideration for the sensibilities of counsel, and in conformity with our usual practice in such cases, no opinion was written giving our reasons for so doing. Counsel for appellee by subsequent acts have rendered it desirable that our reasons be now stated.
The order to strike was entered April 20, 1936, and on May 8, 1936, there was received at the office of the clerk of the court fifteen copies of a printed paper entitled, “Petition of Appellee for Rehearing and Reconsideration of the Order dated April 20, 1936, and Memorandum in support Thereof.” The text of the paper shows the petition to be twofold in character in that, first, it asks a rehearing upon the decision of March 2, 1936, and, second, a rehearing of the order to strike of April 20, 1936.
The immediate matter now before us is an application filed on May 16, 1936, asking the consent of the court to the filing of the last petition above described, it not having been filed by the clerk, who felt himself without authority to file it, except the court should direct that same be done, the rules of the court making no provision for the filing of a second rehearing petition.
The application has been duly considered, the subject matter of the unfiled.petition being ex-ammed ,in-connection therewith. As to the petition for rehearing and reconsideration of the decision of March 2, 1936, there is no conformity whatever with rule VII. So far as we can discern, no attempt is made to conform therewith. The defects in the first petition wherein there was a failure to confine it to “a brief statement of points supposed to have been overlooked or misapprehended by the court * * *” are not cured in the second petition. No reason appears, therefore, why the court should exercise its discretion and permit the filing, at this late day, of a second petition for rehearing and reconsideration of the issues passed upon in the decision of March 2, 1936.
Upon the second point, that of a rehearing and reconsideration of the motion to strike the first petition, counsel for appellee present, by way of argument, the contention that they should have been permitted to reply to the Government’s motion to strike it. This was a matter resting within the discretion of the court, and we were unable, and are yet unable, to see where argument could overcome the obvious and inescapable defects apparent in the petition itself.
*390A further contention in the offered petition is that where, as in reappraisement proceedings before this court, the court is limited to the consideration of questions of law only, a petition for rehearing “must of necessity contain statements appearing to be argumentative.”
This court is not disposed to and does not construe its rules with a strictness which might deprive a litigant of substantial rights; nor is it disposed to enforce them with undue brusqueness. At all times we are guided by what seems to be reasonable and fair. Rule VII in its present form became effective as a rule of this court February 28, 1931. It is thought to be in harmony with the principle of rehearing rules of appellate courts generally, State and Federal. We think it reasonable, and we do not regard a fair compliance with its conditions as being difficult. Other counsel in many cases have found it possible to do so and have complied without complaint against the rule, so far as we are advised. It may be added that practically all the rules of the court before being adopted were submitted to and had the approval of representatives of the attorneys who practice before us in both the customs and patent jurisdictions.
• We see no occasion to grant a rehearing and reconsideration of our order to strike the first petition of counsel for appellee, and, since the subject matter of the offered petition for such rehearing and reconsideration has been fully considered in connection with the application to file it, upon which application we are now passing, no good purpose could be served by filing it and making it the subject of further discussions and orders.
The application to file the petition is, therefore, denied.