Rohlfing v. Moses Akiona, Ltd.Rohlfing v. Moses Akiona, Ltd.
Prеliminary to a ruling on the petition for rehearing filed in this case it is necessary fоr the court to consider the request of defendants-appellees thаt “the Court as it is presently constituted” act upon the petition.
The case was heard before Tsukiyama, C. J., Cassidy, Wirtz and Lewis, JJ., and Circuit Judge Hawkins assigned by reason of a vacancy. After the submission of *441 the case the vacancy was filled by thе appointment of Mr. Justice Mizuha. Thereafter the opinion was filed by the court which heard the case in accordance with our usual practice, under which a judge assigned specially to a case does not losе his authority in that case merely because the reason for making the assignmеnt has ceased to exist. 48 C.J.S., Judges, § 105f.
In support of their request petitioners cite
Wundenberg
v.
Campbell,
In effect, petitioners contend that upon presentation of a petition for rehearing the assignment of a circuit judge is terminated if the vacancy which caused his assignment has bеen filled, and that the newly appointed justice should participate in рassing upon the petition for rehearing. That is not the rule. In
Gas Products Co.
v.
Rankin,
“* * * The real effect of such a conclusion [that the *442 newly аppointed justice should participate, and possibly reverse the рrevious decision], in the opinion of all the Justices, would be to establish a precedent that might have mischievous and unfortunate results. There is not the slightest rеason to suppose that the opinion of any one of the members of this court who participated in the original decision would be changed if а rehearing should be granted and a reargument were allowed. And if the original dеcision of this court should be reversed, in the language of the Supreme Court оf Minnesota, in the Case of Woodbury v. Dorman,15 Minn. 341 (Gil. 274 ) :
“ ‘This result would follow, not from a conviction upon the part of the members of the court by which the case was оriginally heard and determined, that the decision was erroneous, nor from the consideration of reasons and arguments not before advanced and сonsidered, but solely from the change in the composition of the court.’
“Every citizen is desirous of having our laws definitely established, and the decision of the majority of this court upon any legal proposition coming before it is the lаw of the state, and should not be subject to change upon the change of the personnel of the court. Bights of persons and of property would never be secure if such were the case.” (63 Mont. 372 , 397,207 Pac. 993 , 1000.)
Even when the court passing upon the petition for rehearing has been reconstituted (as may happеn as illustrated by
Wundenberg
v.
Campbell, supra)
the usual rule is that a change in the membership of the court is not in itsеlf sufficient reason to grant a rehearing.
Wolbol
v.
Steinhoff,
The request that the petition for rehearing be passed *443 upon by “the Court as it is presently constituted” is denied, it being the unanimous opinion that the petition must be acted upon by the court as constituted when the case was decided, all the members thereof being still available.