Opinion
Rehearing Denied.
Appeal from a judgment of the Superior Court of Sonoma County. S. K. Dougherty, Judge.
COUNSEL:
Barham, & Bolton, Van R. Paterson, and Freeman & Bates, for Appellant.
W. F. Russell, and Rutledge & Pressley, for Respondent.
JUDGES: In Bank. Beatty, C. J., being disqualified, did not participate.
OPINION
THE COURT
In this cause it is impossible for a majority of the court to arrive at a conclusion upon the merits of the case, for the reason that the chief justice is disqualified, and, of the six associates, Justices Van Fleet, Garoutte, and McFarland think that the judgment of the lower court should be reversed for the reasons given in the former opinion of Justice Van Fleet (38 P. Rep. 986), and Justices Henshaw, Harrison, and Temple think that said judgment should be affirmed. The case has been twice argued in Bank -- orally and by briefs -- and frequent consultations have demonstrated that the differences of opinion among the said justices are permanent. Moreover, there is no probability of immediate change in the personnel of the court. Under these circumstances, we think that, upon the authority of Frankel v. Deidesheimer , 93 Cal. 73, and Luco v. De Toro , 88 Cal. 26, the judgment should [44 P. 734] be affirmed.
The judgment and order appealed from are affirmed.