Majority
p. 436[No. 15,202. In Bank. April 15, 1896.] SANTA ROSA CITY RAILROAD, Appellant, v. CENTRAL STREET RAILWAY COMPANY, Respondent.
Headnote
Appeal—Disagreement oe Judges—Affirmance of Judgment.—Where one of the justices of the supreme court is disqualified and the remaining justices are equally divided in opinion and there is no probability of an immediate change in the personnel of the court, the judgment of the lower court must be affirmed.Appeal from a judgment of the Superior Court of Sonoma County. S. IC. Dougherty, Judge.
The facts are stated in the opinion of the court rendered upon the former hearing in Bank reported in 38 Pac. Rep. 986 , and in the present opinion of the court upon rehearing.
Barham, & Bolton, Van R. Paterson, and Freeman & Bates, for Appellant.
W. F. Russell, and Rutledge & Pressley, for Respondent.
In this cause it is impossible for a majority of the court to arrive at a conclusion upon the merits of the case, for the reason that the chief justice is disqualified, and, of the six associates, Justices Van Fleet, Garoutte, and McFarland think that the judg
p. 437
ment of the lower court should be reversed for the reasons given in the former opinion of Justice Van Fleet ( 38 Pac. Rep. 986 ), and Justices Henshaw, Harrison, and Temple think that said judgment should be affirmed. The case has been twice argued in Bank— orally and by briefs—and frequent consultations have demonstrated that the differences of opinion among the said justices are permanent. Moreover, there is no probability of immediate change in the personnel of the court. Under these circumstances, we think that, upon the authority of Frankel v. Deidesheimer, 93 Cal. 73 , and Luco v. De Toro, 88 Cal. 26 , the judgment should be affirmed.
The judgment and order appealed from are affirmed.
Beatty, C. J., being disqualified, did not participate in the foregoing.
Rehearing denied.
Cases cited
- Frankel v. Deidesheimer 93 Cal. 73 p. 437
- Luco v. De Toro 88 Cal. 26 p. 437