Dissenting. — I. This case was tried before four justices of this court, one, Mr. Justice Adams, having been of counsel in the court below,' has taken no part in its consideration and decision. The four justices concurred in an opinion announcing a decision which modified the judgment of the court below. A rehearing was allowed and the case was reargued. There was no order suspending the judgment. This, it is presumed, was not considered necessary, as the decision required the preparation of a decree, and the cause was sent back to the same referee who first heard the case. Upon the rehearing two of the justices adhere to the opinion filed, and two think that it ought to be modified as to one or two items allowed to plaintiff by the opinion. It thus happens that the justices qualified to act in the case are, upon the rehearing, equally divided in opinion upon these items. Tt should be noted that the petition for rehearing does not complain of all the conclusions in the opinion, but only of those upon a few points, and a rehearing is asked upon no other points of the ease. "We are to determine what is the effectof an equal division in the opinion of the judges upon the disputed points which were reargued.
II. The filing of the opinion was the announcement of the decision of the court. Code, section 3205. The case was then decided. The points determined were expressed in the opinion. The decree is the expression of the decision in another form. I conclude that there was a decision in the case at the time the petition of rehearing was filed.
III. The granting of the rehearing did not vacate, annul, or set aside the decision made when the petition was filed. The statute provides that upon the filing of the petition for rehearing the decision shall be suspended upon the order of the court, or one of the judges. Code, § 3201.
We must inquire what is meant by the term “to suspend” the decision. It does not mean to annul, set aside or vacate — to suspend means, “to cause to cease for a time, to hinder from proceeding, to interrupt, to delay, to stay.” Webster. It is used in this sense in the statute, which expresses the thought that the operation of ihe decision is delayed. Section 3202 provides that “with a view to a rehearing, the court may extend the suspension of proceedings, yet farther if need be.” The “suspension of proceedings” here provided for is the delay or stay thereof. This suspension is ordered “with a view to a rehearing.”
The word “view” in this connection means “that which is looked toward, or kept in sight, as object, aim, intention, purpose, design.” Webster. The clause of the section just quoted therefore means “for the purpose of rehearing, the operation of the judgment is delayed.”
Now the setting aside or vacating of the decision is not provided for or contemplated when a rehearing is granted; the statute provides for ‘ ‘suspen*757sion of proceedings,” that is, delay of operation of the decision. This is the plain and undisputed meaning of the statute, and there is no provision found anywhere authorizing or permitting the court to set aside the decision when a rehearing is allowed.
I have considered what the court may do by proper order, but in this case it has made no such order. But upon that fact I place no reliance, and I may concede that whatever the court could have done was done, namely, the operation of the decision was suspended pending the rehearing.
IV. When the rehearing is allowed the court is required to determine whether the opinion will be adhered to, or whether a different decision will be announced in a new opinion, which will operate to set aside the first decision. This of course involves a reconsideration of the whole case. Upon the granting of the rehearing, we were required, then, to determine whether the decision should be set aside and a different decision rendered. I have, I think, showed clearly that the granting of thé rehearing did not set aside the decision. Until set aside that decision must stand. To set aside the decision, a majority of the justices must concur, just as in all other orders and decisions. If the judges authorized to act are equally divided, the decision must stand. I can discover no way of escape from this conclusion.
V. The foregoing views are in accord with our uniform practice. We never enter new judgments in rehearings when the opinions are adhered to; our order is simply, “The opinion is adhered to.”
If the decision is set aside by the granting of a rehearing, of course a new judgment would be entered. We have then the case of a subsisting valid decision; an equal division of the opinions of the judges cannot set it aside.
VI. But, it may be asked, when will the suspension of the operation of the decision terminate. I reply when the proceeding upon rehearing terminates. This proceeding terminates when the court reaches the conclusion that the decision cannot be set aside. This decision is reached when it is discovered that a majority of the court does not concur therein. So when we discover that the judges are equally divided upon the questions submitted on the rehearing, the suspension of the decision is removed and the decision stands and must be enforced.
VII. Consideration of the argument presented in the last paragraph but one of the foregoing opinion, based upon the case of an equal division of the judges of this court in a law action, is demanded for the reason that it has a controlling influence upon the mind of at least one of my brothers. The argument supposes a case of an equal division of opinion upon a rehearing in a law case, which results in reversing or remanding a case. ■ It is said the court below “might adhere to its original view.” I would change the expression and say the court below “ought to adhere to its original view, unless new light was shed upon the case by the new trial.” The equal division in this court, in the supposed case, takes from the decision all authority as a precedent. The judgment of reversal would require a new trial, but the decision of the courts being based upon an equal division could be no guide to the court below, which would be left free to select its own course. Upon another appeal in the case, if the court remained equally divided, the judgment of the court below would be affirmed.
The opinion of the majority contains the statement that in this court “the *758same judgment would be both reversed and affirmed.” It cannot be true that the same judgment can be twice appealed from, or can be both reversed and affirmed in this court. The first judgment being reversed was set aside and ceased to be of force. Thereupon the cause was remanded and another trial was had, and another judgment was rendered, which, in its turn, was appealed from and was here affirmed. So it is impossible that the “same judgment would be both reversed and affirmed. It is true that in the same case there were two successive judgments rendered by the court below, one of them was reversed, and the other affirmed, in .this court, a thing of not unusual occurrence. This result, to my mind gives no suppport to the position that this court, upon an equal division in the opinion of the judges, may set aside a decision rendered by the unanimous concurrence of all the judges qualified to sit in the case. I fail to discover any “absurd results in the supposed case which is made the foundation of an argument of controlling weight with the majority of the court. The way of difficulty and obscurity, it seems to me, has been chosen in the foregoing opinion of the majority. If we should decline to set aside a decision of this court, except upon the concurring opinion of a majority of the judges qualified to sit in this case, one road to such a conclusion would be to my mind plain and clear. I prefer to pursue it and therefore dissent from the foregoing opinion of the majority.