Opinion
6 Div. 803.
June 27, 1935.
Appeal from the Court of Appeals to review and revise the judgment and decision of that court in Birmingham.
Harsh, Harsh Hare, of Birmingham, for petitioner.
Bradley, Baldwin, All White, of Birmingham, opposed.
Reduced to the last analysis, the argument for petitioner seeks review of the opinion of the Court of Appeals on the facts, and overlooks the limited review of this court of such opinion of the Court of Appeals, as illustrated in the following, among others, of our authorities: Loveman, Joseph Loeb v. Himrod, 226 Ala. 342, 147 So. 163; Cable-Burton Piano Co. v. Thomas, 228 Ala. 112, 152 So. 468; Liberty National Life Ins. Co. v. Collier, 228 Ala. 3, 154 So. 118; Great Atlantic Pacific Tea Co. v. Donaldson, 229 Ala. 276, 156 So. 865; Whisenant v. State, 223 Ala. 550, 137 So. 457; Birmingham Electric Co. v. Hereford, 227 Ala. 321, 149 So. 863; Postal Telegraph-Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91.
Considered, therefore, upon the merits, the petition must be denied. But we are of the opinion the denial of the writ could also rest upon the ground that in fact there was no application for rehearing decided adversely to petitioner by the Court of Appeals as required as a condition precedent to the application for certiorari in this court under Supreme Court Rule 44. Richardson v. State, 215 Ala. 581, 112 So. 193. This for the reason that petitioner's application for rehearing in the Court of Appeals was there stricken by said court for a failure to comply with Supreme Court Rule 38. This that court had a right to do, and, having done so, there was no application upon which adverse ruling could be made.
Let the writ be denied.
Writ denied.
ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur.