64 P.2d 828 | Utah | 1937
The petition for rehearing in the present case does not submit any proposition or question which was not fully considered by the court in rendering its decision. While the allegations of the complaint were set out in full and considerable was said about the testimony, the decision rested finally upon the ground that the complaint did not state facts sufficient to constitute a cause of action.
For the reason that there has been, since the case was decided, a change in the personnel of the court, the proposition is presented as to whether or not the new member of the court recently elected and who of necessity did not participate in the original decision upon the question decided should now participate upon the question of a petition for a rehearing. It is true the decision of the court was rendered by a divided court — three of the justices in favor of the decision rendered and two dissenting. After full consideration of the matter, the court as now constituted is unanimously of the opinion that the new member of the court should not participate in the consideration of the petition for a rehearing. For the new member of the court to participate would require that he consider the case on its merits and if, after considering the case, he should be compelled to disagree with the conclusion reached by a majority of the court as constituted at the time the decision was rendered, the ultimate effect would be to reverse the decision made. This question has not heretofore been squarely presented to this court. The effect of the participation of a new member of the court, where the court is evenly divided on the question after the retirement of the former member, would establish a precedent fraught with dangerous implications.
The principles underlying the proposition involved and controlling the court's conclusion as to this matter have been long and well established by the courts of other jurisdictions. In the case of Brown v. Mathias Aspden's Administrators, 14 How. 25,
"And no reargument will be granted in any case, unless a member of the court who concurred in the judgment desires it; and when that is the case, it will be ordered without waiting for the application of counsel."
In the case of Ambler v. Whipple, 23 Wall. 278,
"It is the well-settled rule of this court, to which it has steadily adhered, that no rehearing is granted unless some member of the court who concurred in the judgment, expresses a desire for it, and not then unless the proposition receives the support of a majority of the court."
In the case of Peoples v. Evening News Ass'n,
"This case having been heard and decided when three judges only were sitting, and a change in the court having taken place and a further change being about to occur on the first of January, a motion is now made for a rehearing at the next January term before the full court, as it will then be constituted.
"Held, unanimously, that a rehearing will not be ordered on the ground merely that a change of members of the bench has either taken place, or is about to occur."
In the case of People v. Mayor of New York, 25 Wend. (N.Y.) 252, 35 Am. Dec. 669, Chancellor Walworth, speaking for the court, made the following remarks relating to the principle here under consideration:
"I am satisfied that if we once make a precedent of this kind, it will in time lead to great abuse; and that parties who have had judgments given against them as this was, by a divided vote, or by small majorities, will upon a change of a part of the members of the court be induced to try experiments here, for the purpose of producing a different decision of their causes by the votes of new members." *477
The foregoing case from New York, while not having the issue squarely before it, indicated the principle involved in this matter. In the case of McCutcheon, Adm'r v. Common Council ofthe Village of Homer,
"The case of Blackeby [Detroit v. Blackeby,
A number of the cases just reviewed and additional ones are cited in the case of Gas Products Co. v. Rankin,
The decision in Re Thompson's Estate,
The case of Woodbury v. Dorman,
"The majority of this court as it was constituted at the time of the original hearing, and decision of this case, after much discussion and deliberation, came to conclusions [myself dissenting] which led to the affirmance of the judgment. Since the decision was filed, the author of the majority opinion has been succeeded by the present chief justice. Were the court not constituted as it was when the decision was rendered, there is not the slightest reason to suppose that the decision would be changed. So that if a re-argument were now allowed, and the former decision reversed, this result would follow, not from a conviction upon the part of the members of the court by which the case was originally heard and determined, that the decision was erroneous, nor from the consideration of reasons and arguments not before advanced and considered, but solely from the change in the composition of the court. Under such circumstances, a relaxation of the ordinary rules governing applications for re-argument, would seem to be peculiarly ill-timed. It would, in our opinion, be a violation of proprieties in the administration of justice, which it is the duty of a court to maintain, and would tend to destroy that respect for, and confidence in judicial tribunals, the loss of which every good citizen would deplore."
The petition for a rehearing is therefore denied. *479