State Ex Rel. Tibbals v. Dist. Court

Riner, Justice. Tbe opinions of tbis court previously filed herein — tbe one on November 10, 1930, (292 Pac. 897), and tbe other on February 10,1931 (295 Pac. 916) — fully state tbe nature of tbe case and its disposition. Pursuant to those opinions and on tbe several dates stated, appropriate orders were made by tbe court and were entered, as usual. Tbe order of date February 10, 1931, directed tbe issuance of a peremptory writ of mandamus to tbe District Court of Fremont County, commanding tbe relief to which relator was entitled, as stated in tbe several opinions mentioned above. Tbe writ itself was issued on March 14, 1931. It has been duly served, returned and filed herein. On May 4, 1931, relator presented a motion to substitute, for tbe purpose of assessing damages and costs against certain named parties, who, it is averred, were tbe real parties in interest in tbe litigation. Tbis matter is brought to. our attention for tbe first time nearly three months after tbe final opinion in tbe case was filed and tbe order thereon entered. It is well known to tbe legal profession of this state that petitions for rehearing in this court must be filed within thirty days after tbe decision is rendered (Supreme Court Rule 23), and if a modification of tbe order in question was desired, prompt action on tbe part of tbe one seek *174 ing it should have been taken. Further, it is to be noted that the October term of this court has closed and a new term, fixed by law, has begun, with all the consequences necessarily flowing therefrom. See Schell v. Dodge, 107 U. S. 629, 27 L. Ed. 601. We are of opinion that the motion comes too late and should be denied. Kimball, 0. J., and Blume, J., concur.