On petition for rehearing.
PeR, Cueiam.On December 30th, 1922, the decision of this court was filed in this case. The case was decided by a divided court. The majority opinion written by Mr. Justice Bronson was concurred in by Mr. Chief Justice Birdzell and Mr. Justice Grace. Justices Chris-tianson and Kobinson dissented. On January 1st, 1923, there was a change in the membership of the court. On that day Justices Grace and Kobinson retired from, and were succeeded in, office by Justices Johnson and Nuesslo. On January 13th, 1923, the defendant filed a petition for rehearing. The situation confronting this court upon the filing of the petition was this: There were only two members of the court who had participated in the case upon the original hearing who agreed with the disposition of the case made in the former decision, one of the members of the court disagreed with the former decision, and two members of the court had not participated in the former hearing and were wholly unfamiliar with the case in any of its aspects. In view of the circumstances it was thought advisable to order a reargument without determining whether a rehearing should or should not be granted. The reargument was intended to serve a twofold purpose:
(1) To determine whether a rehearing ought to be granted and the conclusions reached in the former opinion as to the law and facts reexamined; and,
(2) Whether in event any ground for rehearing existed the former decision ought to be departed from.
On oral argument counsel -were informed by the Chief Justice of the purposes for which reargument had been ordered.
After careful consideration a majority of the court are agreed that the petition for rehearing filed in this case does not present any cause *814for which a rehearing ought to be granted. Rule 16, Rules of Practice. The petition is in reality a reargument of the questions determined by the former decision. The mere fact that there has been a change in the membership of the court and that there is either a possibility or a probability that the new members of the court may disagree with the conclusions reached in the former opinion does not afford any reason for a rehearing. 4 C. J. 625. The petition for rehearing is, therefore, denied. The members of the court who participated in the former decision adhere to the views then expressed. Justices Johnson and Nuessle express no opinion as to correctness of the former opinion; but they agree that no cause has been presented requiring a rehearing. In other words, the majority of the court are of the opinion that the questions presented in the petition for rehearing were all disposed of adversely to the defendant by the former decision; and that in making such decision the majority of the court, as then constituted, had before them and considered all the facts; and that it is not shown that they overlooked any controlling decision or statute.
Bronson, Ch. J., and ChrisTianson, Birdzell, Nuessle, and Johnson, JJ., concur.