Phillips v. Reese ( 1952 )

On Motion For Rehearing.

In appellant’s motion for a rehearing appears the following:

“We have felt that we must call the attention of this Court to a possible if not probable inference which might be drawn by the Bench and Bar as the result of some of the language in the opinion to the apparent effect that counsel for Phillips, after the lapse of both the 20 'original days for filing the record, and the additional 5 days conditionally allowed, had then agreed that the record might he filed, and then, despite such agreement, were seeking to take advantage of the failure to file the record with such twenty-five days agreed to.”

We do not see how the language used is susceptible of such construction. We have examined the motion for extension. Endorsed thereon is the agreement signed by counsel for appellant, as quoted in the opinion. It must appear from the opinion that this agreement being endorsed on the motion could not have been made later than the 28th of February. No reflection was .intended on counsel for appellant.

In his motion counsel makes this statement :

“The motion for an extension of time for filing the record seems not to be dated, except by us as of February .24, 1950 * * *.”

Now the agreement appended to the motion is not dated, as stated, but it was enclosed in a letter dated February 28, 1950, in the same package that contained the transcript. This latter statement is correct. Appellant is correct there.is nothing in this motion, to which we agree, that even tends to show that they had after the expiration of 25 days agreed to waive the five days for filing said motion. The agreement must have been signed on or prior to the 28th day of February. This intrinsically appears.

In regard to the petition for mandamus refused by the Supreme Court, in accordance with the request of appellant we gladly state that it appears from the transcript that points 17 and 18 that appellants sought the certification of were not included in the application for leave to file the petition for writ of mandamus, presented to and refused by the Supreme Court.

Careful consideration has been given to appellant’s motion , for a rehearing, and with the above explanation it is ordered that same 'be in all things overruled.