Montgomery v. Gilbert , 111 Mont. 250 ( 1940 )

Since the modified opinion of this court was filed herein, both parties have filed petitions for rehearing. We have given careful consideration to the arguments contained in both petitions and have grave doubts concerning the correctness of some of the questions treated in the opinion as modified by the addendum, and believe therefore that the petitions for rehearing should be granted and the entire case set down for reargument.

NOTE: The remittitur in the above case was issued on December 4, 1940, and on January 14, 1941, appellants filed a petition for recall of the remittitur and for a rehearing. On January 27, 1941, the court made the following order, signed by Associate Justice Morris and Honorable H.H. Ewing, District Judge, who sat in the case in place of Mr. Chief Justice Johnson, disqualified, Mr. Justice Arnold, the writer of the opinion, having in the meantime retired from office: "Appellants' motion to recall remittitur is hereby denied." Associate Justices Angstman and Erickson concurring in the order for the following reason: "We concur in the above order for the reason that, if the remittitur were recalled, the motion for rehearing would fall because of an equal vote on the motion. (Gas Products Co. v. Rankin,63 Mont. 372, 207 P. 993, 24 A.L.R. 294.)"