In re State ex rel. Attorney General

• Decision Date: 05 February 1914
• Citation: 64 So. 310,185 Ala. 347
• Parties: In re STATE ex rel. ATTORNEY GENERAL.
• Court: Alabama Supreme Court

64 So. 310

185 Ala. 347

In re STATE ex rel. ATTORNEY GENERAL.

Supreme Court of Alabama

February 5, 1914

Application by the State, on relation of the Attorney General, for writ of prohibition to restrain the judge of the Eighth judicial district from entertaining jurisdiction of the petition of Chas. Silverman for discharge on habeas corpus from the custody of the sheriff of Morgan county. The petition having been denied, relator applied for rehearing. Dismissed.

R.C Brickell, Atty. Gen., W.L. Martin, Asst. Atty. Gen., and Melvin Hutson and E.W. Godbey, both of Decatur, for appellant.

Wert &amp Lynne, of Decatur, for appellee.

PER CURIAM.

On the 19th day of June, 1913, the original application of the state of Alabama, on relation of the Attorney General for writ of prohibition to restrain the judge of the Eighth judicial circuit from entertaining jurisdiction of the petition of Chas. Silverman for discharge on habeas corpus from the custody of the sheriff of Morgan county, exercised under an order of the law and equity court of Morgan county committing said Silverman for contempt, was denied. An opinion was delivered so concluding. Before 9 p.m. of July 3 1913, counsel for the state posted at Decatur an application for rehearing, properly addressed to the clerk of this court at Montgomery. This application was actually received by the clerk on the morning of July 5, 1913. In due course of mail the thus posted application for rehearing should have reached Montgomery not later than noon of July 4, 1913. The term 1912-13 was adjourned by operation of law on July 30, 1913. No special or adjourned term was held. In regular order the application came on to be considered December 8, 1913, soon after the reconvening of the court for the term 1913-14. The application was stricken, "not having been filed in time," and the opinion was ordered to be and was withdrawn. The state, through its counsel, has made seasonable application to have that order rescinded and the application for rehearing restored to the rehearing docket.

Rule 38 of Supreme Court Practice (Code, pp. 1515, 1516) reads "Rehearings, Application, Time of Filing.-All applications for rehearing must be filed with the clerk of the court, accompanied by brief for the applicant and a certificate of counsel that a copy of such brief has been delivered to opposing counsel, within fifteen days after the rendition of the judgment whether such period...