21 So. 2d 622 | Ala. | 1945
The Court of Appeals sustained appellant's motion to strike the State's application for rehearing upon the ground of a noncompliance with Supreme Court Rule 38, Code 1940, Tit. 7 Appendix. This rule was held as applicable to criminal as well as civil cases in Caraway v. State,
Coming to a consideration of the application for review of the opinion of the Court of Appeals, and speaking to a like situation as here presented, this Court in Birmingham Gas Co. v. Sanders,
The matter of discretion as to Rule 38 rested with the Court of Appeals. But as the overruling of an application for rehearing by that Court is a condition precedent to a review by this Court under Rule 44, there is here no place for the exercise of discretion so long as this rule remains in force.
The case of Rogers v. State,
Upon the merits the State places much stress upon the case of Lewis v. State,
Writ denied.
BROWN, LIVINGSTON, and SIMPSON, JJ., concur. *544