ON REHEARING.
Seevbrs, Ch. J.Upon the petition of the defendant, a rehearing was granted as to several paragraphs contained in the foregoing opinion. As to all of which, except the seventh, the opinion is in all respect adhered to. The questions determined involve propositions of fact only, therefore a more extended discussion of the evidence is deemed unnecessary. As to the seventh paragraph, the court is equally divided. This result is caused by the fact *755that Adams J. has been of counsel, and therefore takes no part in the case. The question now arises, what further order can or should be made. This proposition has been fully argued by counsel, and, in relation thereto, we desire to say: Under the statute, a petition for a rehearing may be filed which stands as the argument in its support. If the court think such argument requires a reply it shall so indicate to the other party and he may reply thereto, within such time as the court may allow. The decision may be suspended until the questions presented in the petition for a rehearing are determined. Code, section 3201, 3202. The rules of this court require the petition to be filed within sixty days after the decision. During such time this court retains jurisdiction of the case for all the purposes of a rehearing as though no opinion had been filed. Mc Kinley v. C. & N. W. R. R. Co., 44 Iowa, 314.
When a reply is ordered the court has of course determined to re-consider the questions as to which a rehearing is asked. In the present case, as no question of law is involved, the court again in the light of the additional arguments has examined the evidence as an original question. The opinion heretofore filed having no effect as to the determination to be made. When the petition was presented, a rehearing was in fact ordered. But this is not regarded as material, for in such a case, or when a reply is directed to be made, the result is the same, and that is, a retrial or reconsideration of the matters as to which a rehearing is asked is the essential thing the court is called on to do. Such reconsideration of the evidence bearing on the question determined in the seventh paragraph of the foregoing opinion hasbeen made and, two members of the court adhere thereto, and an equal number say the conclusion reached is not in accord with the evidence. If this result had been reached when the case was first before the court, the judgment of the District Court would have been affirmed by operation of law. Code, section 140. As the court is unable upon a reconsideration of the evidence, which is enjoined by law, to say whether the foregoing opinion is right or wrong, the result is, and must be, that it does not now embody the views of a majority of the court. That it did so at one time must be conceded, but this is .immaterial, because what is the final decisions of the court can only be known after the final submission of the cause, and after the decision has been made upon such submission. The final submission known to the law of this State is that upon rehearing, when the submission is made, the pivotal question is not what has been theretofore decided, but what decision shall be made.
Suppose that upon a rehearing of an opinion reversing the judgment of the court below in an action at law, this court should be equally divided in opinion. If this division should result in an adherence to the original opinion, and a remanding of the cause, the court below might adhere to its original view, which, upon appeal, would be affirmed by a divided court, so that the same judgment would be both reversed and affirmed. The same result would follow under the same circumstances in an equity case. This being so, it seems to us a different rule than the one adopted would lead to absurd results. It can make no difference where the final decree is entered in an equity cause. The rule should be the same whether entered in this or the court below.
We are therefore of opinion that the seventh paragraph of the foregoing *756opinion must be stricken out, because it does not embody the views of a majority of the court. The result is, the judgment of the District Court in relation to the subject matter thereof must stand affirmed by operation of law. As the defendant consents thereto, the tenth paragraph of the foregoing opinion will also be stricken out, and the judgment of the District Court in ¿elation to the subject matter thereof will be affirmed, unless the plaintiff objects thereto. A decree will be prepared in accordance with this opinion.