Arends v. Frerichs

Per Curiam. [1319] x appeal and fng°Kmanedatory nature oí notice. [1318] The opinion in this case was filed on October 18, 1921. On November 16, 1921, the appellee served upon [1319] counsel for the appellants a notice of intention to petition for a rebearing in said cause. The attorneys for the appellee forwarded said notice to the clerk 0| ^jjjs COurt, for acceptance of service and filing thereof by the clerk. Said notice, however, was not received by the said clerk until some time on November 18th. Thereafter, and within 60 days from the said 18th day. of October, the appellee presented her petition for rehearing to the clerk of this court, and requested that same be filed. Two motions are presented to us upon tEs state of facts: One by the appel-lee, filed herein December 16, 1921, supported by affidavit, wherein the movent prays tlie entry of an order directing the waiver of the rule requiring notice of intention to file a petition for rehearing to be served upon the clerk of this court within 30 days after the filing of the opinion, and directing the clerk to accept service on said notice of intention to file petition for rehearing, and to file the same, and also to receive and file the said petition for rehearing. The appellants not only resist this application for a modification of the rules, but move to dismiss the petition for rehearing, because notice of intention to file the same was not served within 30 clays from the date of the filing of the opinion in said cause. Section 4149 of the Code provides as follows: "Written notice of intention to petition for a rehearing shall be served on the opposite party or his attorney and the clerk of the Supreme Court within 30 days after the filing of the opinion, or within such time as the court may by rule prescribe. ’ ’ Rule 66 of the rules of this court is as follows: "Written notice of intention to petition for a rehearing shall be served on the opposite party or his attorney, and the clerk of this court, and filed with the clerk, within 30 days after filing of the opinion or decision, and if no such notice is served, the petition for rehearing shall not be filed after the expiration of such 30 days.” It is apparent, under this statute and under our rules, that it is imperative that written notice of intention to petition for rehearing in any case must be served upon the opposite party or his attorney, and also upon the clerk of this court, within [1320] 30 days after tbe filing of tbe opinion in any case. Tbis is provided by statute, and is mandatory. It is contended, however, by tbe appellee tbat tbe statute provides tbat a different time tban tbe 30-day period may be prescribed by rule of tbis court. Section 4149 does provide tbat tbe written notice of intention shall be served and filed within 30 days, or within such time as -the court may by rule prescribe. Tbe rule, No. 66, however, is in conformity with tbe statute, and neither limits nor extends its plain provisions. As bearing on this question, see Hanson v. Hammett, 107 Iowa 171. 2. Appeal AND error : waiver of statutory rules. We have held tbat, while we have the power to waive or modify our rules, we cannot change tbe requirements of the statute. Newbury v. Getchell & M. Lbr. & Mfg. Co., 106 Iowa 140. 3 appeal and s5n°Kof luiT' time. But whether or not we could extend tbe time for tbe service of tbe notice of intention to petition for a rehearing in any case, it is well settled, under our previous holdings, that any application for such extension of time must be ma<^e before the time in which tbe act should performed has expired. In the instant case, tbe application for tbe waiver of tbe rule and for tbe extension of tbe time in which to serve the notice of intention to petition for rehearing was not served until tbe 14th day of December, 1921, twenty-eight days after the time within which the notice of the intention to petition for rehearing should have been served. It is contended that, under Rule 97, we should now waive Rule 66 in the instant case, and extend the time for serving the notice of intention to petition for rehearing. Rule 97 provides as follows: “When, by reason of peculiar circumstances, the foregoing rules relating to the abstract, preparation, and argument of causes, ought to be waived or modified in any case, the party desiring such waiver or modification may, upon reasonable notice to the adverse party, apply to any judge of this court in vacation, or to the court in term time, for an order directing the waiver or modification desired.” It will be noticed that this section refers to the rules relating to the abstract, preparation, and argument of cases. If it [1321] is to be extended so that it would apply to tbe time of serving notice of intention to petition for rebearing, still it could not avail the appellee in the instant case. No application for any extension of time was made within the 30-day period, nor until long after such period had expired. Under such circumstances, neither the court nor a judge thereof, under Rule 97, will grant to an applicant a right which has once been lost. Newbury v. Getchell & M. Lbr. & Mfg. Co., supra; White v. Guarantee Abstract Co., 96 Iowa 343; Bennett v. City of Marion, 101 Iowa 112. Appellee’s notice was not served within the time required by the statute and by the rules of this court. The application for waiver of the rules and extension of the time was not filed or served imtil 28 days after the time for serving the notice had expired. The 30-day period provided for in Section 4149 is statutory, and it will so continue, in the absence of a court rule fixing a different period. No different period has been fixed by any rule of this court. Conceding that we have power, under certain circumstances, to waive strict compliance with the rules which we have promulgated, we cannot do so where the matter sought to be obviated is statutory, and where our rules in respect to the subject merely conform to the statute. It follows that the appellee’s motion for a modification-of the rules and an extension of time for service and filing of notice of intention to petition for rehearing must be overruled and the appellants’ motion to dismiss the petition for rehearing must be sustained. It is so ordered.