This is a motion to recall the mandate in the case of Joseph A. Hughes v. Edward Holman, reported in 23 Or. 481, and to modify the judgment in so far as it allowed costs and disbursements to the prevailing party. After consideration, the court rendered the following oral opinion:
The motion to recall the mandate in this cause, and for a modification of the judgment as to the allowance of costs to the respondent, is granted upon the authority of the judgment of this court in the case of Wood v. Fitzgerald, 3 Or. 568. While the court feels bound to respect that decision as the law of the present case, its correctness is doubted, and where a question is properly presented and brought here on appeal, it will be reexamined.