Luco v. De Toro

Paterson, J. When this cause was first, submitted, the judgment of the court below was affirmed, four justices concurring. One of the justices who participated in the decision was not present at the argument; but it was understood by the members of the court, at the time of the decision referred to, that counsel for both parties had stipulated at the hearing—as counsel had in nearly every other case on the calendar for the term at which this case was heard—that any justice not present at the argument might participate in the decision. Upon a representation made by counsel for appellant, after the decision, that no such stipulation had been entered into, and upon their motion, based on the ground that only three of the justices who heard the argument had participated* in the decision, the judgment was set aside. Since that time, the cause has been heard and submitted several times, but no decision has been reached, owing to a change in the personnel of the court, and an equal division of opinion among the six justices qualified to act. At the last October term, counsel for respondent moved that the judgment be affirmed, it appearing that the justices qualified to act were equally divided in opinion.

It is admitted that a mere failure to agree cannot have the effect, ipso facto, of an affirmance, for the constitution requires the concurrence of four justices to pronounce judgment; but it is claimed that it then becomes the duty of the justices who voted for a reversal to unite with their associates in affirming the judgment. The reason given for this contention is an argument ab in~ convenienti. It is said that if this rule is not followed, the case might be continued for four years, until a change in the membership in the court occurs; “ and then, again, the same condition of things might still continue, and this would require a further continuance; and thus it might happen that the case would never be decided,”

[28]Many English and American authorities are cited in support of the motion, and no cases to the contrary have been found by respondent; but the decisions must be read in the light of the circumstances under which they were rendered. Some of the cases referred to went off on the authority of statutes providing that in cases of equal division among the judges the judgment should be affirmed, others upon a rule following the practice of the English courts, and the others upon the ground of expediency. The case of Ayres v Bensley, 32 Cal. 632, is hardly in point. There a judgment had been rendered by a constitutional quorum, and it was only on petition for rehearing that a division occurred. The rule has always been, with respect to petitions for rehearings, that as many justices as are necessary to pronounce the judgment must concur in granting a rehearing, or the petition will be denied.