On Application for Leave to File Motion for Rehearing.
Appellant, Anderson, presents an application for leave to file a motion for rehearing of the judgment in favor of the First National Bank of La Orange. Our opinion and judgment affirming the decree of the lower court in favor of said bank against Anderson was rendered upon January 13, 1917, and due entry thereof made upon the minutes of this court the same day. The 15 days thereafter within which motions for rehearing are permissible under article 1841, Vernon’s Sayles’ Texas Civil Statutes, expired on January 28th, and the application to file the motion for rehearing referred to was not filed in this court until February 3, 1917. The motion for rehearing that appellant desired to have filed accompanies the application, and therein he attacks that portion of our original opinion to the effect that we found no error in the. trial court’s ruling that the defense presented by appellant as against the bank was subject to general demurrer, in consequence of which ruling on our part the judgment in favor of the bank against Anderson was affirmed, as before stated.
The reasons presented in behalf of appellant for the failure to have filed his motion for rehearing within the proper time are, in substance, that since the rendition of our opinion counsel representing him had been moving their law offices, in consequence of which their files had been disarranged, and the ordinary facilities of the office impeded, and that the counsel presenting the application—
“had charged his mind that Saturday, the 3d day of February, was the last day on which said motion could be filed, and with that idea in view on Friday a. m., the 2d day of February, presented this motion to the clerk, when he was informed that the time for filing the same had expired, which was the first information he had calling his attention to such fact.”
The appellee the First National Bank of La Grange opposes the application to file the motion for rehearing, insisting that to so permit will, in all probability, because of the crowded condition of the docket of our Supreme Court, result in long-continued delay in the enforcement of their judgment, and we feel it to be our duty to sustain ap-pellee’s contention in this respect, because of a want of a sufficient showing for the failure to file the motion for rehearing within the proper time. The counsel who presents the application was present on the original hearing of this case, participated in the argument upon that occasion, and it is to be observed that no reason is given in the application for the fact therein stated that the counsel—
“had charged his mind that Saturday, the 3d day of February, was the last day on which said motion could be filed.”
This court, feels every disposition t'o enforce the rules provided for the dispatch of *843business liberally, but we cannot hold, as' against the right of a litigant, that, with all the facilities for information available to counsel participating in the disposition of a cause in this court, he may, in the exercise of due diligence, rely upon a mere idea or loosely formed recollection of the proper time within which, voider the law, he is required to complain.
In the case of Sams v. Creager et al., 85 Tex. 497, 22 S. W. 399, it was distinctly held that the rule requiring persons to file within the proper time motions for rehearing must be enforced. In that case, as here, an excuse was attempted for a failure to file the motion for rehearing in time, but the Supreme Court held that the excuse was insufficient, stating:
“If it had been shown that the failure to file the motion within the time prescribed by law resulted from accident, or cause other than neglect of applicant, this court might consider the application, notwithstanding that the Court of Civil Appeals had not acted on the motion for a rehearing.”
That ease was one that was appealed from this court, and we now have before us the original record in which the excuse presented by the counsel in that case was made. It was to the effect that counsel was — .
“a subscriber to the Ft. Worth Daily Gazette, and examined each issue to ascertain what disposition had been made of said cause by this court, and also requested a member of the bar at this place (Amarillo) to notice said paper for any information.to said cause appearing in it.”
It was further alleged that:
“Without fault on his part, he never discovered that any opinion had been handed down by this court until said opinion was published in full in the Gazette of the - day of February, 1893. That on the morning the Gazette containing said opinion reached this place, affiant left for Deaf Smith county on professional business and was absent four days. That on his return home a motion was presented by mail to the clerk of this court for rehearing. in said cause, in behalf of appellant Sams. * * * Affiant says that he used due diligence in his efforts to learn the opinion of the court on said cause as soon as the same was handed down, and his said motion for rehearing was presented to the clerk of this court as soon as possible after learning that said cause had been disposed of.”
The Supreme Court, as stated, held the excuse insufficient, and declined to assume jurisdiction over the cause. We accordingly conceive it to be our duty to overrule the application for leave to file the motion for rehearing, particularly in view of the fact that the appellee bank’s judgment is based upon a plain promissory note executed by appellant, Anderson, and as against which we concluded on the original hearing, and still think, appellant presents no sufficient defense.