place and stead. In consideration, the remaining judges of this court did not deem that the petition presented facts which justified them in calling in a district judge, but that at the most it presented such a state of facts that Mr. Justice Robinson must be permitted to determine for himself whether it was improper for him to sit. He maintained that he entertained no bias or prejudice whatever, and had not even the slightest acquaintenance with the parties. The case was argued on December 8, 1920. Upon the hearing of the appeal—and before the oral argument commenced,— the conclusions reached by this court upon appellant’s said application were announced orally. Appellant’s counsel thereupon, made a brief argument or statement in connection with said matter; and in connection therewith, Mr. Justice Robinson, from the bench, stated, in substance and effect, that the reference made in the former opinion to this action was made for the reason that the complaint in this case was attached to and made a part of the counter affidavits filed in that case; that\while, of course, he had some opinion as to the law relative to the collateral impeachment of judgments, nevertheless he was not only willing an ready to hear appellant’s argument, but could and would do so with and open mind; and that the opinion expressed in the decision of the other case would not be permitted to interfere with a fair and impartial consideration and determination of this case. The cause was thereupon argued on the merits, with Mr. Justice Robinson sitting as a member of the court. In the circumstances, we did not deem this question one arising on the record in the case as submitted or of sufficient importance to dignify it by formal discussion in the opinion. In the petition for rehearing, how ever, this is made the main basis for attack upon the former decision.
In Tuttle v. Tuttle, supra, a motion was made to vacate the judgment, rendered in the divorce action. The matter was submitted upon affidavits. In one of the affidavits submitted by the defendant, reference was made to the fact that L. C. Pettibone, who made the principal affidavit, had, some time prior to the institution of the proceeding to vacate the judgment, brought two actions to recover large amounts against the defendant, Tuttle, and that one J. S. Greene had instituted an action against said Tuttle to recover about $10,000 in connection with a land transaction some ten or twelve years old, in which the said Pettibone was interested; also, that on the 18th day of June, 1918, the said Louise J. Tuttle had commenced this action against said Wm. P. Tuttle, to recover approximately $480,000, upon the claim that if a decree had been granted to her in the divorce case, she would have received from said Wm. P. Tuttle at
