Opinion
6 Div. 365.
January 8, 1959.
Appeal from the Circuit Court, Tuscaloosa County, W. C. Warren, J.
John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for the petition.
Davis Donald, Tuscaloosa, opposed.
Petition by the state to review and revise the opinion and decision of the Court of Appeals in Marcum v. State, 107 So.2d 899.n. 1
The respondent has moved to strike the petition and brief filed in support thereof on the ground that "a copy of the brief filed in support of said petition * * * was not served on counsel for the appellant * * * within fifteen (15) days after" the overruling of the state's application for rehearing, as required by Rules 11 and 39 of the Revised Rules of the Supreme Court, 261 Ala. XIX, Code 1940, Tit. 7 Appendix. It appears that the state's application for rehearing was overruled on October 7, 1958; that the state's brief in support of its petition was mailed to counsel for respondent on October 22, 1958, the fifteenth day after the overruling of the application for rehearing, and was received by respondent's counsel on October 23, 1958. In view of the provisions of Rule 44 of the Revised Rules of the Supreme Court, respondent's insistence is without merit. Rule 44 provides as follows:
"Whenever any brief, notice, motion or other document is required by these rules to be served, such service may be made either personally or by mail, unless otherwise provided for. If made personally, it shall consist of delivery to a party or to his counsel, as the case may be; provided, however, personal service when made on counsel may consist of delivery, at the office of counsel, to counsel or a clerk therein. If by mail, it shall consist of depositing the same in a United States post office or mail box, with first class postage prepaid, addressed to counsel or the party, as the case may be, at his post office address."
Respondent's motion to strike is denied.
Writ of certiorari is denied.
LAWSON, SIMPSON and COLEMAN, JJ., concur.