
    Johnston and another, Appellants, vs. City of West Allis, Respondent.
    
      November 19, 1920
    
    March 8, 1921.
    
    
      Appeal and error: Affirmance by divided court.
    
    Where the justices of the supreme court arq equally divided in opinion on the question involved on an appeal, the judgment appealed from will be affirmed.
    Appeal from a judgment of the circuit court for Milwaukee county: Gustave G. Gei-irz, Circuit Judge.
    
      Affirmed.
    
    In 1917 the council of defendant city made an assessment of damages against the two plaintiffs as abutting property owners on National avenue in said city for a portion of the expenses incurred in then placing a new wearing surface upon an existing concrete base which had been constructed in 1912. ■
    Upon appeal to the circuit court the assessments were upheld, and from á judgment confirming the same the several plaintiffs have appealed to this court.
    For the appellants there was a brief by Lines, Spooner & Quarles of Milwaukee, and oral argument by Charles B. Quarles.
    
    
      Joseph E. Tierney, city attorney, for the respondent.
   The following opinion was filed December 14, 1920:

Eschweiler, J.

Mr. Justice Kerwin did not participate in the hearing and decision of this case. Mr. Chief Justice Siebecicer, Mr. Justice Vinje, and Mr. Justice Owen are of the opinion that the judgment of the circuit court should be affirmed. Mr. Justice Rosenberry, Mr. Justice Jones, and the writer are of the opinion that it should be reversed. This under the rule requires an affirmance of the judgment. Estate of Carter, 167 Wis. 89, 166 N. W. 657.

By the Court. — The judgment of the circuit court is affirmed.

A motion for a rehearing was denied, without costs, on March 8, 1921.  