is, so to speak, invested with an atom of Divinity, by which, for a brief moment of time, he is authorized to exercise an attribute of the Omnipotent, but, after all, his decrees and judgments are, in their nature, interlocutory. They may be final, so far as time is concerned, but are not so for eternity. For, finally, the actions of men, including the decrees and judgments of courts, must pass a final review before a final tribunal of justice, whose Judge cannot err, whose Decree will pronounce justice, and there, no doubt, the majority opinion will be overruled.
ON PETITION FOR REHEARING
Christianson, J. Appellant has petitioned for a rehearing. The petition is based on two grounds:
1. That Mr. Justice Robinson, who sat as a member of the court upon the hearing on the appeal and joined in the former decision, was disqualified, and should not have participated in the hearing or determination of the case; and,
2. That the former decision was erroneous in holding that the complaint did not state facts sufficient to constitute a cause of action.
1. On November 29, 1920, the appellant filed a written petition wherein attention was called to the following statement contained in the opinion prepared by Mr. Justice Robinson in Tuttle v. Tuttle, 46 N. D. 79, 181, N. W. 888: “It is shown that in January, 1918, defendant commenced an action against the plaintiff in the district court of Kidder county to recover about $480,000 ($300,000, with interest from January, 1909). The basis of the action is that in the divorce suit she should have recovered at least $300,000. Such an action, in the opinion of the writer, taken in connection with the proceedings in this case, gives to the whole a color of blackmail. It shows an attempt to extort money from the plaintiff, to force him to buy his peace by harassing him with vexatious, groundless, and expensive litigation. The judgment in the case was given after a full and fair hearing. It imports absolute validity and verity. It is not subject to a collateral attack, nor is the plaintiff, in the opinion of the writer, subject to a suit for obtaining the judgment. Hence, no party has a right to commence or prosecute such an action.” And it was contended that this evidenced such bias and prejudice on the part of Mr. Justice Robinson in favor of the respondent and against the appellant as to disqualify him from sitting in the case. And it was asked that the remaining judges of this court call one of the district judges to sit in his
