On Application for Rehearing.
Ludeling, C. J.In the brief filed in support of the application for a rehearing in this case, it is suggested that Mr. Justice Morgan, who pronounced the judgment of the court, should have recused himself, and reference is made to the statute (Sec. 1922 R. S.), which declares that “ whenever, in any case before the Supreme Court, or any other court having appellate jurisdiction, the judgment appealed from shall have been rendered, in the first instance, by any judge of said appellate court, at a time when he was judge of the court of original juris diction, it shall be the duty of said judge ex officio to recuse himself, without it being necessary that a motion be made to that effect by any of the parties.”
The statute has not the remotest bearing in the case before the court.
The judgment appealed from was not rendered by Judge Morgan, but by Judge Cooley, judge of the Sixth District Court, of which Mr. Justice Morgan never was judge. While judge of the Second District Court, Judge Morgan decided a case growing out of the will of George Johnson, but that case was decided by this court years ago, and it is a totally different case from the one now under consideration; the causes of action and the things claimed in the two suits were different.
The other grounds for a rehearing have even less reason to support them than the foregoing, for if it be conceded that the agreement of fifteenth of December, 1857, did not embrace the Louisiana property, still, having decided that the testament was valid and that Bradish Johnson had discharged the obligations imposed on him by the will, it is of no consequence what the said agreement embraced.
The rehearing is therefore refused.