J. Leland Anderson v. Roger I. Knox

300 F.2d 296

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 28, 1962
• Docket: 16196
• Status: Published

Opinions

PER CURIAM.

Appellant asks for a total of 150 days in which to file a petition for rehearing. Counsel’s affidavit in support of the application states: “Due to length of the record (approximately 4500 pages) and especially its complexity involving charts and schedules of accounting and insuranee data, approximately 186 exhibits, the expanded size of the briefs (approximately 400 pages), and the length of this Court’s decision of December 4, 1961 (48 pages), affiant urgently requires a maximum extention of time to prepare and file a petition for rehearing, en banc.”

It is obvious from the statements in the affidavit that appellant plans, under the guise of a petition for rehearing, to study and reargue his case anew. Such is not the proper function of a petition for a rehearing, and an attempt to do as suggested is an abuse of the privilege of making such a petition. Furthermore, such efforts are ill-advised and self-defeating.

A properly drawn petition for rehearing serves a very limited purpose. That purpose is well outlined in the rule on the subject adopted by the Eighth Circuit, to which we should call counsel’s attention. There the limited purpose of such a petition is properly stated as follows: “For the sole purpose of directing the attention of the court to some controlling matter of law or fact which a party claims was overlooked in deciding a case, a petition for rehearing may be served and filed not later than twenty days after the filing of an opinion.” U.S.Ct.App. 8th Cir. Eule 15, 28 U.S.C.A. The rule further states: “The petition shall be confined to a concise statement (without argument) of the matter which the petitioner asserts the court overlooked, together with references to such pages of the opinion and of the record on appeal and to such authorities as will enable the court to determine whether the matter referred to was overlooked and, if so, whether it is of sufficient consequence to require a rehearing of the case or of some particular issue or a modification of the opinion * *

In an effort to protect this court against the commonly attempted effort to argue anew eases which it has once decided this court has added to its Rule 23, 28 U.S.C.A. relating to rehearings the following provision: “A petition for rehearing may be presented within 30 days after judgment. It must be printed, and briefly and distinctly state its grounds, without argument, in not to exceed 5 pages, and without a supporting memorandum * * It is thus apparent that this appellant is asking for 30 days per page of his allowable petition.

The record in this case has been filed here since July, 1959. During that time appellant’s counsel has had plenty of opportunity to become familiar with the 4500 pages and the 186 exhibits which he mentions. On November 3, 1959 he filed a brief 114 pages in length with appendix containing 27 pages; he filed on July 18, 1960 a reply brief of substantially the same length. It would appear that if appellant is not now fully familiar with the record and the issues in this case there is not much chance that he will ever become so. The application for the requested period of time we regard as wholly unreasonable.

IT IS ORDERED that appellant be and he is granted 45 days from and after the 3d day of January, 1962 within which to file a petition for rehearing herein.