Todd's Estate, In re

• Decision Date: 02 October 1962
• Parties: In re ESTATE of Beauford TODD, Deceased. Dorothy Mills TODD et al., Appellants, v. Annie TODD et al., Respondents.
• Court: Wisconsin Supreme Court

Page 335

117 N.W.2d 335

16 Wis.2d 635

In re ESTATE of Beauford TODD, Deceased.

Dorothy Mills TODD et al., Appellants, v. Annie TODD et al., Respondents.

Supreme Court of Wisconsin.

Oct. 2, 1962.

Wiley & Devine, Chippewa Falls, for appellants.

Ingolf E. Rasmus, Chippewa Falls, Frank E. Huettner, Cadott, James B. Halferty, Chippewa Falls, of counsel, for respondents.

PER CURIAM.

On this motion counsel for appellants contends that the matter should be reheard partly for the reason that a new and additional justice has come on the bench since the original decision per curiam by an evenly divided court affirming the lower court's order.

It should be stated for the guidance of counsel that it is an unwritten rule in this court that where a justice has not been on the court and for that reason could not and has not participated in the original determination by this court, such justice will not participate in deciding a later motion for rehearing on that same cause. There is nothing in the statutes or in the previous decisions of this court to take away his power to sit on such a motion, since such is a new matter independent of the original decision, but because it is deemed better policy to refrain from participating in ruling on the motion when he wasn't part of the original decision, this unwritten rule has been adopted and followed here.

On the merits we see no reason to change our original mandate or opinion.

The motion for rehearing is denied, with $25 costs.