After the mandate had been recalled and a rehearing granted in this cause, by order of December 6, 1938, counsel for appellees on January 10, 1939, filed a motion, "to set aside and strike from its records the pretended order entered in said cause on December 6, 1938, whereby (1) the Clerk of the Circuit Court of Pinellas County was directed to return to the clerk of this Court the mandate theretofore issued in said cause; (2) the extraordinary petition of appellants for rehearing was attempted to be granted; and (3) the cause was directed to be submitted *Page 748 in due course," — the grounds of the motion being stated.
On March 20, 1939, the Court made the following order in this cause:
"This cause having been submitted to the Court upon motion of counsel for appellees to set aside and strike from its record the order entered therein on December 6, 1938, which motion has been argued by counsel for the respective parties and duly considered by the Court, it is thereupon ordered by the Court that the above styled cause be set down for oral argument on the merits at 10:00 o'clock A. M., Monday, March 27, instant."
On June 1, 1939, counsel for appellees filed a motion "to cease reconsidering the said cause of its merits and desist from further reconsideration thereof, to set aside and strike from its records the order of December 6, 1938, made by three judges only of this Honorable Court whereby a rehearing was attempted to he granted, and to return to the lower court the mandate of this Honorable Court heretofore issued."
One of the grounds of the motion is that "If this Honorable Court should reach the conclusion that the decree appealed from should be reversed, the Court would be without power to enter a decree of reversal since to do so would take the property of appellees — to-wit, the decree appealed from and the rights of the appellees thereunder — without due process of law, contrary to and in violation of Section 12 of the Declaration of Rights and the Fourteenth Amendment to the Constitution of the United States, * * *."
The Court having duly considered said motions filed in this cause on January 10, 1939, and June 1, 1939, it is now ordered by the Court that each of such motions be and is hereby denied because the Court is evenly divided and the *Page 749 motions could only be granted by the affirmative action of the majority of the Court participating in the disposition of such motions.
WHITFIELD, BROWN and BUFORD, J. J., concur.
TERRELL, CHAPMAN and THOMAS, J. J., dissent.