6 Div. 97. | Ala. | Mar 11, 1937
Admittedly the application for rehearing in the Court of Appeals, as shown by the record of that court, was filed November 19, 1936, the sixteenth day after the judgment sought to be reheard. Whether, for matters dehors the record, it should have been indorsed filed on November 18th, was a question of fact for the Court of Appeals. That court having found against petitioner, such ruling will not be reviewed in this court, unless the opinion of the Court of Appeals discloses a finding of facts upon which that court has misapplied the law. No such finding appears.
By Supreme Court Rule 38, the application and brief filed within 15 days must be accompanied by "a certificate of counsel that a copy of such brief has been delivered to opposing counsel." (Italics supplied.) It affirmatively appears, as disclosed in the opinion of the Court of Appeals, here sought to be reviewed, that the copy of brief was not mailed to out-of-town counsel until November 19th, the sixteenth day, and was received some two days later.
The order of the Court of Appeals striking the application, and order denying the later petition to vacate such order, were within the rightful exercise of the authority of that court to enforce its rules of practice.
See cases cited in the opinion of the Court of Appeals.
Writ denied.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.