192 Iowa 1318 | Iowa | 1922
Section 4149 of the Code provides as follows:
"Written notice of intention to petition for a rehearing shall be served on the opposite party or his attorney and the clerk of the Supreme Court within 30 days after the filing of the opinion, or within such time as the court may by rule prescribe. ’ ’
Rule 66 of the rules of this court is as follows:
"Written notice of intention to petition for a rehearing shall be served on the opposite party or his attorney, and the clerk of this court, and filed with the clerk, within 30 days after filing of the opinion or decision, and if no such notice is served, the petition for rehearing shall not be filed after the expiration of such 30 days.”
It is apparent, under this statute and under our rules, that it is imperative that written notice of intention to petition for rehearing in any case must be served upon the opposite party or his attorney, and also upon the clerk of this court, within
We have held tbat, while we have the power to waive or modify our rules, we cannot change tbe requirements of the statute. Newbury v. Getchell & M. Lbr. & Mfg. Co., 106 Iowa 140.
It is contended that, under Rule 97, we should now waive Rule 66 in the instant case, and extend the time for serving the notice of intention to petition for rehearing. Rule 97 provides as follows:
“When, by reason of peculiar circumstances, the foregoing rules relating to the abstract, preparation, and argument of causes, ought to be waived or modified in any case, the party desiring such waiver or modification may, upon reasonable notice to the adverse party, apply to any judge of this court in vacation, or to the court in term time, for an order directing the waiver or modification desired.”
It will be noticed that this section refers to the rules relating to the abstract, preparation, and argument of cases. If it
Appellee’s notice was not served within the time required by the statute and by the rules of this court. The application for waiver of the rules and extension of the time was not filed or served imtil 28 days after the time for serving the notice had expired. The 30-day period provided for in Section 4149 is statutory, and it will so continue, in the absence of a court rule fixing a different period. No different period has been fixed by any rule of this court. Conceding that we have power, under certain circumstances, to waive strict compliance with the rules which we have promulgated, we cannot do so where the matter sought to be obviated is statutory, and where our rules in respect to the subject merely conform to the statute.
It follows that the appellee’s motion for a modification-of the rules and an extension of time for service and filing of notice of intention to petition for rehearing must be overruled and the appellants’ motion to dismiss the petition for rehearing must be sustained. It is so ordered.