Richards v. Burden
| Decision Date | 13 July 1882 |
| Citation | 59 Iowa 723,13 N.W. 90 |
| Parties | RICHARDS v. BURDEN AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Dubuque district court.
On rehearing.
*91Griffith & Knight, for plaintiff.
George Crane and Robinson & Lacy, for defendants.
Upon the petition of the plaintiff a rehearing was granted as to several paragraphs contained in the foregoing opinion; as to all of which, except the seventh, the opinion is in all respects adhered to. [See 7 N. W. REP. 17.] The questions determined involve propositions of fact only, therefore a more extended description of the evidence is deemed unnecessary. As to the seventh paragraph the court is equally divided. This result is caused by the fact that ADAMS, J., has been of counsel, and therefore takes no part in the case. The question now arises, what further order can or should be made? This proposition has been fully argued by counsel, and in relation thereto, we desire to say: Under the statute a petition for a rehearing may be filed, which stands as the argument in its support. If the court think such argument requires a reply, it shall so indicate to the other party, and he may reply thereto within such time as the court may allow. The decision may be suspended until the questions presented in the petition for a rehearing are determined. Code, §§ 3201, 3202. The rules of this court require the petition to be filed within 60 days after the decision. During such time this court retains jurisdiction of the case for all the purposes of a rehearing as though no opinion had been filed. McKinley v. C. & N. W. R. Co. 44 Iowa, 314.
When a reply is ordered, the court has, of course, determined to reconsider the questions as to which a rehearing is asked. In the present case, as no question of law is involved, the court again, in the light of the additional arguments, has examined the evidence as an original question. The opinion heretofore filed having no effect as to the determination to be made, when the petition was presented a rehearing was in fact ordered. But this is not regarded as material, for in such case, or where a reply is directed to be made, the result is the same, and that is a retrial, or reconsideration of the matters as to which a rehearing is asked, is the essential thing the court is called on to do. Such reconsideration of the evidence bearing on the question determined in the seventh paragraph of the foregoing opinion has been made, and two members of the court adhere thereto, and an equal number say the conclusion reached is not in accord with the evidence. If this result had been reached when the case was first before the court, the judgment of the district court would have been affirmed by operation of law. Code, § 140. As the court is unable, upon a reconsideration of the evidence, which is enjoined by law, to say whether the foregoing opinion is right or wrong, the result is, and must be, that it does not now embody the views of a majority of the court. That it did so at one time must be conceded; but this is immaterial, because what is the final decision of the court can only be known after the final submission of the cause, and after the decision has been made upon such submission. The final submission known to the law of this state is that upon a rehearing. When this submission is made, the pivotal question is not what has been theretofore decided, but what decision shall be made.
Suppose that upon a rehearing of an opinion reversing the judgment of the court below, in an action at law, this court should be equally divided in opinion. If this division should result in an adherence to the original opinion and a remanding of the cause, the court below might adhere to its original view, which, upon appeal, would be affirmed by a divided court; so that the same judgment would be both reversed and affirmed. The same result would follow, under the same circumstances, in an equity case. This being so, it seems to us a different rule than the one adopted would lead to absurd results. It can make no difference when the final decree is entered in an equity cause. The rule should be the same whether entered in this or the court below.
*92We are therefore of opinion that the seventh paragraph of the foregoing opinion must be stricken out, because it does not embody the views of a majority of the court. The result is, the judgment of the district court, in relation to the subject-matter thereof, must stand affirmed by operation of law. As the defendant consents thereto, the tenth paragraph of the foregoing opinion will also be stricken out, and the judgment of the district court, in relation to the subject-matter thereof, will be affirmed, unless the plaintiff objects thereto. A decree will be prepared in accordance with this opinion.
1. This case was tried before four justices of this court. One, Mr. Justice ADAMS, having been of counsel in the court below, has taken no part in its consideration and decision. The four justices concurred in an opinion, announcing a decision which modified the judgment of the court below. A rehearing was allowed, and the case was reargued. There was no order suspending the judgment. This, it is presumed, was not considered necessary, as the decision required the preparation of a decree, and the cause was sent back to the same referee who first heard the case. Upon the rehearing two of the justices adhere to the opinion filed, and two think that it ought to be modified as to one or two items allowed to plaintiff by the opinion. It thus happens that the justices qualified to act in the case are, upon the rehearing, equally divided in opinion upon these items. It should be noted that the petition for rehearing does not complain of all the conclusions in the opinion, but only of those upon a few points, and a rehearing is asked upon no other points in the case. We are to determine what is the effect of an equal division in the opinion of the judges upon the disputed points which were reargued.
2. The filing of the opinion was the announcement of the decision of the court. Code, § 3205. The case was then decided. The points determined were expressed in he opinion. The decree is the expression of the decision in another form. I conclude that there was a decision in the case at the time the petition for rehearing was filed.
3. The granting of the rehearing did not vacate,...
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