Ewell v. Kefauver

The following per curiam opinion was delivered on motion for réargument:

The decision of the lower court in this case was affirmed by an equal division of the six judges who heard the argument on appeal in this Court; and the appellant moves for a re-.argument, contending that a division by less than the whole bench of eight judges is never conclusive, and that the parties .are entitled to have all eligible judges hear the case and endeavor to reach a majority decision before the case can be disposed of by ,a division. One of the» judges being ineligible to sit on the appeal of the case, the application is for a re-argument before seven judges.

.Under the Constitution of the State, section 15 of article 4, four of the judges constitute a quorum, and that is to say, they constitute the Court, with all the powers given for hearing and disposing of appeals; and while in practice appeals .are seldom heard by so small a number of the judges, litigants are, in our opinion, entitled, of right, only to a hearing by so many judges, and to such disposition of the case as they may be able to make. This Court could not assure the presence of seven judges for a rehearing of this case. And we are unable to accept the view that a bearing 'by an even number of judges, less than eight, can never be undertaken except at the risk of a rehearing in case of an equal division of opinion. That does not, in our opinion, accord with the constitutional provision, and it would hamper the work of the court to adopt it. This case, in the opinion of all the judges, should remain disposed of as it is.

Opinion filed May 13th, 1925.

Motion for reargument overruled.