Gilchrist v. Cotton , 83 Ind. App. 415 ( 1925 )

ON APPLICATION FOR LEAVE TO FILE PETITION FOR REHEARING. This cause was determined by this court July 2, 1925. On the sixty-first day thereafter, appellant, by his counsel, tendered to the clerk of this court a petition for a rehearing. The 13. clerk having refused to receive and file this petition, appellant, on September 11, filed his application herein, asking that he be granted leave to file his petition for a rehearing and briefs in support thereof. The only excuse given by appellant for his failure to file said petition within the time permitted by statute is that his attorney, after having "counted the days" within which time the petition could be filed, in "good faith believed that September 1, 1925," was in time. The time within which a petition for a rehearing may be filed is fixed by § 730 Burns 1926, § 662 R.S. 1881, which provides that "At any time within sixty days after the determination, either party may file a petition for a rehearing." The time for filing a petition for a rehearing expired August 31, 1925. As was held by the Supreme Court inDudgeon v. Bronson (1902), 159 Ind. 562, 64 N.E. 910, 65 N.E. 752, 95 Am. St. Rep. 315, the court has no power to extend the time for filing a petition for rehearing beyond the time fixed by the statute. See, also, Clark v. DeCamp (1922),79 Ind. App. 225, 136 N.E. 844, 137 N.E. 716.

While the court has authority to correct an error in its records after the time for filing a petition for a rehearing has expired, it has been said that: "Except where the filing 14. of a petition was prevented by an unavoidable accident, or by the fraud of the opposite party, and the petitioner is without fault, the court will not reopen the cause for consideration and determination of the questions involved in the appeal." Ewbank's Manual (2d ed.) § 241.

Application denied.

Filed October 15, 1925.