Johnson v. State

74 So. 2d 508 | Ala. | 1954

Petition for certiorari to the Court of Appeals to review and revise the decision of that court in the case of Johnson v. State, 37 Ala. App. 650, 74 So.2d 506.

We have no alternative but to strike the petition. In the first place, it shows on its face that it was filed with the clerk of this court more than fifteen days after the Court of Appeals overruled petitioner's application for rehearing. Secondly, no brief accompanied the petition. Rule 44 of the Rules of Practice in the Supreme Court, as amended, Code 1940, Tit. 7, Appendix, Cum.Pocket Part, provides that "the application to this court must be filed with the clerk of the supreme court within fifteen days after the action of said court of appeals upon the said application for rehearing", and further provides that the application for certiorari "must be accompanied by a brief pointing out and arguing the point or decision sought to be revised." We have held that compliance with this rule is mandatory and jurisdictional. Dawson v. State, 259 Ala. 205, 66 So.2d 568; Oliver v. State, 256 Ala. 295, 54 So.2d 618; Burch v. State, 249 Ala. 72, 29 So.2d 425. We have also held that placing the application and briefs in the mail within the prescribed period is not a compliance with the rule. Troup v. State, 248 Ala. 143, 144, 26 So.2d 622. Accordingly, the petition is due to be, and is, stricken.

Petition stricken.

LIVINGSTON, C. J., and SIMPSON and CLAYTON, JJ., concur.