On January 18, 1937, this Court granted a second and extraordinary rehearing in this case for the purpose of hearing arguments confined solely to the question: "Whether or not the case of Carmichael v. Eberle, 177 U.S. 63, 44 L. Ed. 672,20 Sup. Ct. Rep. 571, requires adherence by this Court to its original petition filed herein on September 3, 1935, wherein and whereby the decree of the lower court was reversed, all of the Justices concurring?"
The situation out of which this inquiry develops arose as follows: After the original hearing and reversal of the decree of the lower court a petition for rehearing was filed and the Court on the 9th day of October, 1935, by unanimous opinion denied that petition for rehearing. Thereupon an extraordinary petition for rehearing was filed and the Supreme Court, without granting a rehearing, ordered oral argument on that petition for rehearing but without granting a rehearing in advance of the argument. After the argument on that petition for rehearing the Court became equally divided as to whether or not the decree below should be affirmed or reversed. Justices ELLIS, TERRELL and BUFORD were of the opinion that the decree of the lower court should be affirmed and that the prior decision of the Supreme Court entered September 3, 1935, should be annulled and set aside. Justices WHITFIELD, BROWN and DAVIS were of the contrary opinion. To bring this litigation to an end an order was entered by the Court to the *Page 467 effect that because of the even division of the Court, the decree appealed from should be affirmed rather than the former opinion of the Supreme Court reinstated.
After that order a petition for rehearing (this time interposed by the appellants) was filed. That petition was denied. Thereupon a second and extraordinary petition for rehearing, again by the appellants, was filed, with the result that the order of this Court entered on January 18, 1937, was made granting a rehearing restricted to the peculiar question hereinbefore stated at the outset of this opinion.
Appellants in arguing our question urge the view that since the first opinion of the Supreme Court reversed the decree, only a majority of the Court can avoid that opinion and that the subsequently developed equal division of the Court on the subject whether or not the decree should be affirmed or reversed is not within the rule of State, ex rel. Hampton, v. McClung, 47 Fla. 224,37 Sou. Rep. 51, but is controlled by the principle laid down in Carmichael v. Eberle, supra, wherein it was held by the Supreme Court of the United States that an equal division of the Court on a motion for rehearing of a judgment of reversal rendered by the appellate court leaves the appellate court's judgment in force and does not result in affirming the judgment of the lower court as in cases where the equal division of the appellate court occurs upon the original consideration of the appeal. In this connection it is pointed out by appellants that in the case of Florida Motor Lines, Inc., v. Hill, 106 Fla. 33,143 Sou. Rep. 261, this Court expressly cited with approval the decision of the United States Supreme Court in the case of Carmichael v. Eberle, 177 U.S. 63, 44 L. Ed. 672, 20 Sup. Ct. Rep. 571, and upon the authority of that case adhered to its own previous judgment of reversal upon an equal division of the Supreme Court after rehearing had been granted. It is further *Page 468 pointed out by appellants that Florida Motor Lines, Inc., v. Hill, supra, was followed by this Court in the later case of Benson v. First Trust Savings Bank, 105 Fla. 135,145 Sou. Rep. 182, wherein it was said that an original judgment of the Supreme Court on appeal should be ordered to stand unaltered on second rehearing when there was an equal division of the Court as to the decision of such appeal on such rehearing. To the same effect is the case of Foster v. Thornton, 119 Fla. 49, 160 Sou. Rep. 490. Other cases following the same principle are M.F. Comer Bridge Foundation Co. v. Sheeran, 119 Fla. 543, 161 Sou. Rep. 60, and City of Marianna v. Davis, 124 Fla. 145, 169 Sou. Rep. 50.
In opposition to the application of the rule laid down by the Supreme Court of the United States, and cited with approval by this Court in our own decisions to which reference has just been made, appellee takes the position that the Supreme Court has the power, so long as it retains jurisdiction of a cause, to vacate and set aside its judgment, with or without petition for rehearing, and that since this Court has impliedly vacated and set aside its original opinion by granting a petition for rehearing, with all Justices concurring therein, that the judgment of the lower court should be affirmed when there is an equal division of the Court on such rehearing granted, especially where the equal division of the Court is as to a reversal of the decree for procedural reasons only.
The case of State, ex rel. Hampton, v. McClung, 47 Fla. 224,supra, has been often cited by this Court as authority for affirming judgments of the Circuit Court in cases where there is an equal division of the Supreme Court on whether or not a lower court's judgment should be affirmed or reversed. But the true interpretation of that decision, as a reference to it will show, is not that an equal division of *Page 469 the Supreme Court results in an automatic or ex proprio vigore affirmance of the Court's decision, but simply that all the Judges agree to vote to affirm the judgment of the lower court in such cases as an expedient to accomplish the winding up of the litigation.
In other words, supported by the presumption of correctness which always attaches to an appealed judgment brought before a court of review, the Judges of the appellate court, who are in favor of reversal may appropriately waive any insistence on mere matters of opinion and thereupon unite with their associates in an affirming the judgment appealed from, when that appears to be necessary to bring the litigation to an end, especially when they do so without in any way relinquishing their individual conviction upon the particular questions of law or fact involved in the decision of the case. As was said by this Court in the opinion in State, ex rel. Hampton, v. McClung: "Under our constitutional provision an equal division of opinion cannot have the effect ipso facto of an affirmance, for the Constitution makes the concurrence of a majority necessary to a decision, but where the division is permanent and there is no probability of an immediate change in the personnel of the Court, it becomes the duty of those in favor of reversal to unite with their associates in affirming the judgment, otherwise the case might be continued indefinitely, and the delay amount to a denial of justice."
An equal division of the Supreme Court is most commonly confined to questions of opinion only. It does not ordinarily import a division as to the nature of the appellate judgment to be rendered except as the judgment is implicit in the consensus of the opinions expressed by the several judges. Therefore, in any case when the Justices become equally divided in their opinions as to whether or not error has been demonstrated in an appellate cause, the inquiry *Page 470 naturally arises as to what kind of judgment (as distinguished from opinion) shall be rendered in the case in order to put an end to the litigation and at the same time not relinquish the individual convictions of the several Justices as to the law and facts of the case.
Ordinarily such a stalemate in the judicial process, where it occurs upon the original consideration of an appeal, is best solved by the Justices who favor reversal joining with the Justices who favor affirmance so as to terminate the litigation by preserving the status quo. And after rehearing (or on consideration of a petition for rehearing) it is ordinarily best solved by those Justices who favor a change in appellate result joining with the Justices who want the original appellate result to stand to the end that the first appellate judgment shall be made the judgment final of the appellate court in that particular case.
Where, however, there is an equal division of the Supreme Court on a question of procedure, so that the judgments of the Supreme Court, if one of reversal, must be a reversal with directions, and because of an equal division of the Court there is no majority concurrence, and can be no majority concurrence, in the character of directions to be given incident to a judgment of reversal, the judicial stalemate is best obviated by the Justices as a whole concurring in such judgment as will finally end the litigation through an affirmance of the judgment of the lower court, where such disposition can be agreed upon by the Justices who favor reversal, without the surrender on their part of their individual convictions in the premises.
Such has been the course followed in this case. So while we adhere to the principles of our previous decisions following and affirming Carmichael v. Eberle, supra, we distinguish the present case from the others on the basis of what has just been said as to the nature of the equal division *Page 471 of the Justices, and so holding, we reaffirm our appellate judgment of November 9, 1936.
ELLIS, C.J., and TERRELL and BUFORD, J.J., concur.
BROWN, J., dissents.
Mr. Justice DAVIS concurred in the foregoing opinion.