Reeve v. Colusa Gas & Elec. Co.

HENSHAW, J.

The respondent moves the court to set aside an order granting a rehearing, and to issue a

remittitur

in accordance with the judgment of the court in Bank, heretofore made.

The case was first decided in Department Two upon an opinion reversing the judgment, Justices Henshaw, McFarland, and Lórigan joining in the decision. A rehearing was

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granted- by the court in Bank, vacating the Department decision. The case was then placed on the calendar for hearing before the court in Bank. In the mean time; Justice Sloss had become a member of the court, as successor to Justice Van Dyke, deceased, but, having an interest in the defendant corporation and deeming himself disqualified, he had declined to sit in the case. At the time the case came on for hearing in Bank, Justice McFarland was ill and unable to be present. Under these circumstances, the court, in order to secure a full bench for the consideration of the case, availed itself of the provision of the amendment of 1904 to section 4 of article VI of the constitution, and, in accordance therewith, selected from the justices of the district court of appeal, Justice Cooper to act in place of Justice Sloss, and Justice Harrison to act in place of Justice McFarland. The cause was then orally argued and submitted to the court in Bank thus constituted, which, after due consideration, affirmed the judgment of the court below by a decision in which Justices Shaw, Angellotti, Harrison, and Chief Justice Beatty concurred, and from which Justices Henshaw, Lorigan, and Cooper dissented. The appellant then filed a petition asking that this judgment be vacated, and that the case be again heard before the court in Bank. At the time this petition came up for determination Justice McFarland had recovered his health and was again able to act, and was present, ready and willing to act upon the matter of granting or denying the rehearing. Justice Harrison was also present, ready and willing to act in the matter, and offered, if the court so desired, to act thereon as a member of the court in Bank, to which the cause had been argued and submitted. Thereupon it was decided by the justices of the supreme court, all being present, that Justice McFarland of the supreme court, and not Justice Harrison of the district court, should participate in the determination of the petition for rehearing, and that, as the disqualification of Justice Sloss was of a continuing nature, Justice Cooper should continue to act in the case in his place, by virtue of his original selection. The court, as thus constituted, then took up the petition for rehearing for consideration, and it was granted by four of the justices,—namely, Justices Henshaw, Lorigan, and McFarland of the supreme court,