ON REHEARING
ELLETT, Chief Justice:The appellant requests a rehearing of this matter which was decided January 25, 1978, based solely upon the ground that Mr. Justice Henriod, a retired member of this Court, participated therein. There is no merit to the contention made by appellant.
Article VIII, section 2 of the Utah Constitution provides:
The Supreme Court shall consist of five judges, which number may be increased or decreased by the legislature, . If a justice of the Supreme Court shall be disqualified from sitting in a cause before said court, the remaining judges shall call a district judge to sit with them on the hearing of such cause. . . . [Emphasis added.]
Pursuant to the provision of the quoted section, the legislature did increase the number of justices who may sit on causes before the Court. U.C.A., 1953, 49-7-5.7 provided:
Any judge who has retired under the provisions of this act and is physically and mentally able to perform the duties of the office shall be entitled after retirement to serve from case to case as a justice of the supreme court upon invitation of the chief justice, .
That section was later amended by Chapter 222, Laws of Utah, 1967, codified as U.C.A., 1953, 49-7-5.7 to read:
Any judge who has retired under the provisions of this act and is physically and mentally able to perform the duties of the office and who is not engaged in the practice of law shall be entitled after retirement to serve from case to case as a justice of the Supreme Court upon invitation of the chief justice, .
Mr. Justice Henriod is mentally and physically able to sit and is not engaged in the practice of law. He, therefore, is qualified to sit on the case. Pursuant to the statute, Justice Henriod was invited to sit on this case. His vote in the matter was not needed as the decision was a per curiam *1318opinion with two of the five justices concurring in the result. Not only was his vote immaterial, but the appellant is not in a position to complain about it for he did not object when the appeal was heard and decided by the Court as then constituted. He only complains about the membership of the Court after the decision was rendered partially against him. In this petition he makes no complaint about the decision itself.
This identical situation was before this Court in the case of People v. Tidwell et a1.1 In that case Judge Powers sat with other members of the Supreme Court although he was not a member thereof. This Court said:
The third ground urged is that Judge Powers, who sat in the hearing of the case in this court, was not, at the time, a member of this court. The question as to whether Judge Powers was a legal member of this court is one that the court would not examine into upon a motion for a rehearing, where no facts are shown to warrant it, and where one side only is heard. He was a de facto officer most certainly, and the attention of the court was not at the time called to any irregularity in his so doing, nor was any doubt cast upon his authority to act. Besides, Judge Powers did not agree with the majority of the court, but dissented.
We see no good reason for granting the prayer of the petitioner, and the rehearing is denied.
The dissent cites U.C.A., 1953, 78-2-3 as authority for hearing a motion for rehearing. That section applies to the pronouncing of a judgment. In this case, the judgment has been pronounced. To set it aside requires a vote of a majority of those who heard the matter; otherwise the judgment which was pronounced by a majority of the Court stands.2 In this case, three justices who voted for the original decision have voted to deny the motion for a rehearing and that constitutes the required majority.3
For the reasons above set out, the petition for a rehearing is denied and the decision heretofore given is affirmed. The respondent is awarded costs, if any.
HENRIOD, Retired J., concurs in the result.
. 5 Utah 88, 12 P. 638 (1886).
. 5 C.J.S. Appeal & Error § 1408; 5 Am.Jur.2d, Appeal & Error, § 985.
. The writer of the dissent, for reasons perhaps known to himself, refers to the case of Mathe-son v. Crockett, Utah, 577 P.2d 948, 1978, in which he did not participate. It is to be observed that even by the tests set forth in the dissent, that case would have no application here. The parties appeared for argument; the Chief Justice announced the disqualification of two Justices, named those selected to sit in their stead, and asked and obtained from the parties through their counsel, the approval of the court as so constituted. No question has been raised by any party to that suit as to the composition of the court.