An opinion was written in this case by Commissioner Duffle, which is reported ante, p. 558. Defendant has filed a motion for rehearing supported by a vigorous brief.
After a careful consideration of the motion and brief, the court is inclined to the opinion that the result of the hearing before the commission is right and that the conclusion should stand. But it may be, and probably is, true that the attorney for defendants acted in good faith in his efforts to apprise plaintiffs of what he designed doing in the matter of calling the case for trial and also in seeking to notify him of the action of the court after the decision of the case. It would hardly be in accordance with the spirit of equity and'justice to deprive plaintiffs of their legal right to redeem their land because they relied upon the agreement to allow the case to stand *565without trial until the case of Logan County v. McKinley-Lanning Loan & Trust Company, then pending in this court, should be decided. That such an agreement was made in open court, and so understood by plaintiffs and the judge presiding at the time, must be believed. While the statement of the judge of the fact included in the bill of exceptions may have been somewhat irregular, yet it cannot be ignored, and must be taken as true. It, no doubt, expresses truthfully the understanding the’ judge had in the matter. An opinion was rendered by the supreme court in the MoEinley-Lanning case upholding the contention of the defendants. Their attorney then, in a somewhat informal way, notified one of the previous counsel for plaintiffs, not knowing that he had severed his connection with the case, that he proposed calling up the case at a session of the court soon thereafter to be held. He did so call up the case and took his judgment. In the meantime, a rehearing was allowed in the McEinley-Lanning case, and a final decision was rendered, reversing the former one and holding in favor of plaintiffs. The mistake of defendants was made in not ascertaining the fact of the motion and final action of the court in that case on the rehearing. It is the opinion of the Avriter and his associates that the defendants probably acted in good faith and without actual fraudulent intent in procuring the judgment of which complaint is made, but yet the case comes within the rule, and the decision of the district court setting aside the former judgment must stand.
The motion for rehearing is overruled, and a rehearing
Denied.