A rehearing having been granted herein and the record and arguments having been again fully considered, the Chief Justice, Mr. Justice ELLIS and Mr. Justice TERRELL are of the opinion that the decree appealed from should be affirmed pursuant to the first opinion filed herein, while Mr. Justice WHITFIELD, Mr. Justice STRUM and Mr. Justice BUFORD are of opinion that the decree should be reversed in part as indicated by the separate opinions filed herein; therefore, the decree will be affirmed so that the appeal may be disposed of.
Where the members of the appellate court are equally divided in opinion as to whether a judgment, decree or *Page 250 order on appeal or writ of error should be reversed or affirmed, and there is no prospect of a change of judicial opinion in the premises or of an immediate change in thepersonnel of the court, the judgment, decree or order should be affirmed, so that the litigation may not be unduly prolonged. Stubblefield v. Wilson, 88 Fla. 323, 102 South. Rep. 885; Stateex rel. Amos v. Hamwey, 87 Fla. 55, 100 South. Rep. 796; Colman v. Macha, 87 Fla. 529, 100 South. Rep. 796.
Where the members of the Supreme Court sitting six members in a body after full consultation are equally divided in opinion as to whether or not a judgment should be reversed, and there is no prospect of an immediate change in the personnel of the court, it becomes the duty of those who favor reversal to vote with those who favor affirmance and thereby affirm the judgment of the lower court. In such case while the judgment is a bar to another action for the same cause, yet, as no matters of law are decided so far as the questions upon which the court is equally divided are concerned, the judgment possesses no dignity or force as a judicial precedent as to such matters. State ex rel. Hampton v. McClung, 47 Fla. 224, text 225,37 South. Rep. 5; 4 C.J. 1122; 2 R.C.L. 262; 3 Cyc. 405.
The decree appealed from is affirmed.