On Rehearing.
The application for rehearing filed by appellee in this case is sought to be stricken or dismissed by motion of appellant, as follows:
“Comes appellant and respectfully shows unto the Court, 'and unto the Judges thereof, as follows:
“1. That this case was regularly submitted in this Court on May 26, 1942, and on said original submission this appellant fully complied with Rule of Practice No. 13 of this Court and of the Supreme Court by filing briefs, with proper certificate, as required by said Rule No. 13. [Rules of Practice of the Supreme Court, rule 13, Code 1940, Tit. 7, Appendix].
“2. That appellee failed to comply with Rule of Practice No. 38 of this Court, and of the Supreme Court and did not file any brief and did not serve any brief upon appellant until June 16, 1942, all of which will appear from the records of this court in this cause.
“The Premises Considered, Appellant Moves the Court to strike, or dismiss, the purported application for rehearing filed in this cause by appellee for the reason that appellee did not comply with Rule 13, as above set out and did not file brief within fifteen days after submission of the case, containing certificate that a copy of same was served within said time upon *8counsel for appellant, as required by Rule 38 of the Supreme Court of Alabama.”
In opposition to the motion to dismiss, or strike, this application for rehearing, able and earnest counsel for appellee makes known to this court appellee’s desire to have the opinion of this court reviewed by the Supreme Court. There appears no controversy as to the stated grounds upon which the motion is predicated, but it is shownr. to the court, in brief of appellee on this question, that counsel for appellee took the precaution to write to the clerk of this court, requesting that the court would grant him a few days further time in which to file brief and in said letters stated what is termed good and sufficient reasons to support the request for extension of time.
Rule 38 provides, among other things:
“No appellee can, as matter of right, apply for a rehearing unless brief was filed with the clerk upon, the original hearing within fifteen days after submission of the cause containing a certificate that a copy of same was served within said time upon counsel for appellant.”
This rule further provides: “An extension of time for filing such brief by any justice upon request of counsel will not suspend this rule so as to entitle the appellee to apply for a rehearing unless a brief was filed within fifteen days as above provided.”
However, notwithstanding the emphatic, and apparently mandatory provisions of the rule above quoted, it has been definitely held a discretion rests in the appellate courts in invoking the rule and that the above provisions need not be applied in any case in which the ends of justice may appear to require further consideration. Caraway v. State, 207 Ala. 588, 93 So. 548.
In Hall v. State, 222 Ala. 26, 130 So. 533, 534, the Supreme Court said: “Whether or not the rule should be applied and enforced in the particular case to which the rule applies was a matter addressed to the irrevisable discretion of the Court of Appeals.”
The law contemplates that every litigant shall have his day in court, and courts generally act in accordance therewith, and upon the matter under discussion in light of the discretion with which this court is vested, we are constrained to, and do hold, that the motion to dismiss or strike the application for rehearing in this case must be overruled and denied.
As to the opinion promulgated we entertain no doubt of its soundness, therefore the application for rehearing is overruled.
Application overruled.