Langer v. Kositzky, 38 N. D. 616, 621, 622, L.R.A. 1918 D, 237, 106 N. W. 534.
It is suggested in the petition for rehearing that the fact that Mr. Justice Robinson participated after his right to sit had been assailed will render the judgment of this court of questionable validity. For reasons already stated we are entirely satisfied that a situation does not exist in this case which would justify the remaining members of the court in ruling that Mr. Justice Robinson is disqualified. But even if we were of the opinion that he was disqualified, it would not follow that the former decision. participated in by him, is invalid. That decision was agreed to by a majority of this court, exclusive of Mr. Justice Robinson. Hence, under the rule adopted in this state, the judgment would not be invalid, even though Mr. Justice Robinson was in fact disqualified. See State ex rel. Langer v. Kositzky, supra.
The other questions presented in the petition for rehearing are merely a reargument of the contentions made upon the former argument. It is again contended that the complaint does state a cause of action; that the demurrer admits that the decree was obtained by fraud and bribery. These contentions were fully considered and determined in the former decision. Further reflection has not changed the views expressed therein.
A rehearing is denied.
Robinson, Ch. J., and Bronson and Birdzell, J J., concur.
Grace, J. (dissenting in part and expressing no opinion in part). In so far as the opinion denying the petition for rehearing asserts that the complaint did not state a cause of action, I dissent from it. As far as the disqualification of Justice Robinson is concerned, it is only necessary to say that it has been the rule of this court that each justice of the supreme court should decide for himself whether or not he is disqualified in a given case. Justice Robinson determined for himself that he was not disqualified.
By reason of this rule. I express no opinion on the disqualification claimed to exist against Justice Robinson.
