In the above entitled and numbered case, the attorney for the Addison County Trust Company, plaintiff and appellant, has filed a motion directing the court's attention to the fact that the decree handed down by this court on the 30th day of October, 1933, reinstating the decree handed down on the 29th day of May, 1933, affirming the judgment of the district court, was concurred in by only four members of the court, and that one of the members of the court who concurred in the decree was absent during the argument of the case on rehearing and therefore should not have taken part in the rendering of the decree. The attorney for the plaintiff and appellant therefore has moved that the court set aside the decree rendered on the 30th day of October, 1933, and reassign the case for reargument.
In view of the fact that one of the four members of the court, the CHIEF JUSTICE, who concurred in the decree rendered on the 30th day of October, 1933, was absent during the argument of the case and therefore did not intend to take part in the rendering of the decree, but took part inadvertently and not remembering that he was absent during the argument, it is ordered that the decree handed down on the 30th day of October, 1933, and concurred in by only three members of the court who had heard the argument, is set aside in so far as it purports to be a decree of the court, and this case is ordered reassigned for reargument on the rehearing heretofore granted. *Page 590
On Second Rehearing.