The respondent has filed with the clerk a petition for rehearing without serving a copy thereof on the adverse party. Section 4 of article VI of the constitution, as amended November 8, 1904, contains the following provision: —
"The supreme court shall make and adopt rules not inconsistent with law for the government of the supreme court and of the district courts of appeal and of the officers thereof, and for regulating the practice in said courts."
In pursuance of this authority and command the supreme court has adopted rules of practice which are now in force. Rule XXX provides as follows: —
"1. Applications for a rehearing of a cause by the court rendering judgment therein must be filed and a copy served on the adverse party, within twenty days after the judgment is pronounced. The adverse party may file an answer thereto not less than two days before the expiration of the time within which the rehearing can be granted. . . .
"4. The times herein prescribed shall not be extended, and the clerk must not file any such application or answer after the time therefor has expired."
By virtue of the power conferred by the amendment, the supreme court now has authority to make rules of practice which have the force of positive law so far as the rights of the parties are concerned, provided such rules do not conflict with any act of the legislature. The provisions of rule XXX, above quoted, are consistent with the law. They confer a positive right upon the prevailing party to have a copy of such application served upon him, at least ten days before the expiration of the time within which the application can be considered by the court, and give him at least eight days thereafter within which to file an answer thereto. These are substantial advantages to adverse parties, and if they are wisely used the court will be materially aided in the disposition of the application. Where rules of court are of such a nature that important rights are given by them, a compliance therewith must be strictly enforced. In cases where it is shown that by unavoidable accident or excusable mistake parties *Page 139 have been prevented from observing such rules, and it appears that substantial injury will be inflicted by their enforcement, the court may, on proper terms, allow a departure therefrom. Such cases, however, must be extremely rare and the circumstances extraordinary, and the court will be reluctant to vary in the least from the exact practice prescribed. Under the circumstances here shown the petition should not have been filed without the service upon the adverse party, and it must be disregarded.