Wilkinson v. Lindsey

On Motion for Rehearing.

PER CURIAM.

Our original opinion and judgment of af-firmance in this case were dated and handed down on February 16, 1959. Rule 458, Texas Rules of Civil Procedure, allows either party 15 days in which to file in this Court a motion for rehearing. A computation of that time under Rule 4, T.R.C.P., discloses that the 15-day period in this case expired on March 3, 1959.

Appellant, Robert Lee Wilkinson, has sent to the Clerk of this Court, through the United States mail and requested its filing, a motion for rehearing in the said cause. The envelope in which the enclosure was received shows a postmark of: “Lubbock, Tex. Mar. 3, 2:30 P.M., 1959” and the same was received through the United States mail by the Clerk of this Court on March 4, 1959. Obviously, the request for filing the motion for rehearing reached the Clerk of this Court too late for filing,

Since appellant’s motion for rehearing was not tendered for filing by March 3, 1959, or was not deposited in the mail in time for the envelope carrying it to have *167been postmarked “one day or more before the last day for filing same,” as required by the provisions of Rule 5, T.R.C.P. as amended by order effective March 1, 1950, we have no option but to deny appellant’s right to have his motion for rehearing filed or considered by us. We have no authority to enlarge or extend the time for filing such motion under the circumstances and rules cited. Thomas v. Thomas, Tex.Civ.App., 228 S.W.2d 548, 552; Dennis v. Galbreth, Tex.Civ.App., 228 S.W.2d 579, 582; Phillips v. Reese, Tex.Civ.App., 256 S.W.2d 162, 166; Davis v. Brotherhood of Ry. Carmen of America, Tex.Civ.App., 272 S.W.2d 938.