
    Francisco, Respondent, vs. Hatch, Appellant.
    
      December 13, 1904
    
    February 21, 1905.
    
    
      Affirmance on equal division of court.
    
    Appeal from a judgment of the circuit court for Sauk 'county: E. Ray Stevens, Circuit Judge.
    
      Affirmed.
    
    The decision upon a former appeal in this action is reported in 117 Wis. 242.
    The cause was submitted for the appellant on the brief of B. E. Noyes, and for the respondent on that of Dithmar & •Carow and Grotophorst, Evans & Thomas.
    
   The following opinion was filed January 10, 1905:

Oassobay, C. J.

This cause was originally tried at the ■circuit before Mr. Justice Siebecker, now a member of this court. The other members of this court find themselves equally divided on the question of the admission of certain •evidence, and this necessarily results in an affirmance of the judgment.

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

Siebecker and Kerwin, JJ., took no part.

Mr. Justice Kerwin having become a member of the court -and taken his seat at the January term, 1905, the appellant moved for a rehearing, urging, among other things, that five justices would be qualified thereon to determine the questions involved in the appeal.

For the respondent it was contended that a defeated party cannot secure a reargument in the appellate court merely because there has been a change in the membership of the court, citing Shreveport v. Holmes, 125 U. S. 694; People v. New York, 25 Wend. 252; Mason v. Jones, 3 N. Y. 375; Stearns v. Hemmens, 3 N. Y. Supp. 16; Peoples v. Evening News Asso. 51 Mich. 11; Woodbury v. Dorman, 15 Minn. 341; Ayer v. Stewart, 16 Minn. 89; Devereux v. Devereux, 81 N. C. 12. See, also, Gibbs v. Seibt, 118 Wis. 145; Jacobs v. Queen Ins. Co. 123 Wis. 608.

Tbe motion was denied February 21, 1905, Justices Sie-beoker and Kerwin taking no part in tbe decision.  