Frankel v. Deidesheimer — 93 Cal. 73

Majority

p. 73

[No. 13412.

In Bank.

January 22, 1892.]

L. B. FRANKEL, Appellant, v. PHILIP DEIDESHEIMER et al., Respondents.

Headnote

Appeal — Equal Division of Opinion — Affirmance of Judsment.— Where one of the judges of the supreme court is disqualified from participating in the decision of a case submitted to them, and the rest of the judges, after repeated consultations, are equally divided in their opinion as to whether or not the case should be reversed, and there is no probability of an immediate change in the personnel of the court, the judgment will be affirmed.

Appeal from a judgment of the Superior Court of Sierra County, and from an order denying a new trial.

The facts are stated in the opinion of the court.

William F. Herrin, and H. L. Gear, for Appellant.

Hundley & Gale, S. B. Davidson, and Smith & Ford, for Respondents.

— This cause has been long pending in this court, and has been reargued twice. One of the justices is disqualified from participating in its decision, and of the six other justices three are of opinion that the judgment should be affirmed, and three are of opinion that the judgment should be reversed. Repeated consultations have ended in the same disagreement, and there is no probability of any change in the opinions of those now constituting the court, or of any immediate change in the personnel of the court. Under these circumstances we think that the judgment should be affirmed, for the reasons stated in Luco v. De Toro, 88 Cal. 26 .

The judgment and order are affirmed.

Mr. Justice Harrison, being disqualified, did not participate in the foregoing.

Cases cited

Luco v. De Toro 88 Cal. 26 Cal. 1891-02-05 p. 73