The original opinion herein was prepared and filed on February 27, 1925. On March 16, 1925, appellant filed a petition for rehearing especially asking a modification in the form of the judgment which the lower court was directed to enter, and citing in support of its argument Case v. Bank,100 U.S. 446, 25 L. ed. 695. This court, being of the opinion that the modification should be made in accordance with the petition, but to avoid the necessity of printing the original opinion as filed with a modification on petition for rehearing, adopted the practice of withdrawing the original opinion, making the modification, and filing it as modified, and on April 4, 1925, counsel upon both sides were notified in writing that ". . . . The original opinion has been refiled amended. . . . "
All of the members of the court immediately left to hold a term at Pocatello, and were absent until April 13, 1925. In the meantime, counsel for appellant, without making any petition for a rehearing, wired the clerk of this court his suggestions now contended for, for a further modification of the opinion, with the request that the clerk file his telegram and present it to the writer, and that if the remittitur had gone down, to "please have recalled at my expense." Appellant followed this by filing and serving extracts from the citations made in the telegram. In the meantime, the physical work of making the necessary copies of the amended opinion not having been completed, the clerk did not physically file that opinion, and advised counsel for appellant that the amended opinion was being held until the return of the court. The court, upon its return, after consideration of the showing made by appellant, considered that the practice of counsel for appellant was not in accord with orderly procedure, and that the communication from counsel could not and would not be considered as an application for rehearing. The foregoing amended opinion was, therefore, ordered filed *Page 725 April 30, 1925, and counsel upon each side advised thereof.
Appellant has now filed a further petition for rehearing, asking, as formerly suggested, that the opinion be so modified that, in equalizing the appellant with other creditors as to dividends already paid, the receiver be required to pay appellant "interest thereon at six per cent from times of payments to other creditors till payment to appellant." In this petition for rehearing, counsel for appellant concedes that "The amendatory provision in the opinion of the court in this case should be sufficient since it directs payment in due course of administration," and then justifies his procedure with relation to the telegrams recited, and in filing this petition for rehearing, on the ground that the opposition has, at all stages, taken "very technical positions," and that he deemed it prudent to request the insertion of this provision as to interest in the amended opinion.
It seems to us that the amendatory provision in the amended opinion should be sufficient, and it no doubt would have been had counsel not raised the point by his telegram and citation of authorities, and this court thereafter refiled the opinion without such modification, thus, perhaps, appearing to negative the contention. The point contended for by appellant being proper, the receiver would, no doubt, in the absence of all this procedure, have acceded to the proposition. The point insisted upon was at no time presented to this court by appellant in its original brief, reply brief or first petition for rehearing, and the foregoing amended opinion is in almost the language of Case v. Bank, supra, cited by appellant in its former petition.
Quite at outs with the fears of appellant, respondents have asked the court to hasten this decision, and have waived appearance against the second petition for rehearing.
While, as a matter of strict legal right, failure of counsel sufficiently to present a cause for determination is no ground for a rehearing, and matters presented for the first time on application for rehearing need not necessarily be considered (4 C. J., p. 627, sec. 2488, p. 629, sec. 2494), it is more essential that justice be done than that exact or technical rules *Page 726 of practice or procedure be followed. We conclude that, in accordance with the authorities cited by appellant (Armstrong v. American Exchange Nat. Bank, 133 U.S. 433,10 Sup. Ct. 450, 33 L. ed. 747; Malcomsom v. Wappoo Mills, 99 Fed. 633; Chemical Nat. Bank v. Armstrong, 59 Fed. 372, 8 C.C.A. 155, 28 L.R.A. 231), interest should be allowed upon the deferred dividends. We feel, however, that other creditors should not be penalized by a delay of at least thirty days which might apparently have been avoided. It is, therefore, ordered that the original amended opinion herein be still further amended by inserting, in the direction to the lower court to enter judgment in favor of appellant, after the words "ratable proportion of dividends," appearing in the latter portion of the last paragraph thereof, and before the words "before further payment," the following: "with interest thereon at six per cent per annum from a time or times thirty days subsequent to the times of payment to other creditors until payment to appellant." It is so ordered. A rehearing is denied. No further costs allowed.
Budge and Givens, JJ., concur.