On petition for rehearing.
Per Curiam.The decision in this caso was filed December 30th. 1922. The case was decided by a divided court. A majority — Justices Bronson, Christianson and Grace — agreed that the judgment appealed from should be affirmed. Mr. Chief Justice Birdzell and Mr. Justice *850Robinson dissented. On January 1st, 1923, tliere was a change in the membership of the court. On that day Justices Robinson and Grace retired, and were succeeded in office by Justices Johnson and Nuessle. On January 15th, 1923, the defendant filed a petition for rehearing. The situation confronting this court upon the filing of such 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 disagreed with the conclusion reached in 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 re-argument without determining whether a rehearing should or should not be granted. The re-argument was intended to serve a two-fold purpose. (1) To determine whether a rehearing ought to be granted and the conclusions reached in the former opinions as to the law and facts -re-examined; and (2) Whether in event it appeared that grounds for rehearing existed the conclusion reached in the former decision ought to be departed from.
On oral argument counsel were informed by the chief justice of the purposes for which re-argument had been ordered. After careful consideration we are agreed that the petition for rehearing filed in this case does not present any cause for which a rehearing ought to be granted. Rule 16, Rules of Practice. The petition is merely a re-argument 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 or may be, a possibility or even a probability that the new members of the court (if they were to consider the case anew) might reach different conclusions from those reached by the majority members in the former decision, 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 the correctness of the conclusions reached by the majority members in the former opinions; but they agree that no cause for reheáring has been presented. In other words, the members of the court as now constituted are all of the opinion that the questions presented in the petition for rehearing were all considered and disposed *851of 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 material facts, and that it is not shown that they overlooked any controlling decision or statute.
Bbonson, Ch. J., and Christianson, Birdzell, Nuessle, and Johnson, JJ., concur.