
    Deglow, Executor, v. Kruse et al.
    
      Two judges of circuit court form quorum—
    Two judges of the circuit court may form a quorum, but if they are divided in opinion as to the effect of evidence offered upon the trial of issues of fact, a valid final judgment cannot be rendered.
    (Decided January 26, 1898..)
    ERROR to the Circuit Court of Hamilton county.
    The plaintiff brought suit in the court of common pleas for the foreclosure of a mortgage. Upon issues of fact joined the cause was there determined, and an appeal was taken to the circuit court. In the circuit court-the cause was disposed of by the following judgment entry:
    “On this day this cause came on for hearing before Judges Swing and Smith, two of the judges of this court (Judge Cox being sick and not able to- sit in the trial of said cause), and was submitted to the court on the pleadings and evidence and was arg-ued by counsel. On consideration whereof the two said judges who heard said case, being divided in opinion as to the right of the plaintiff to recover as against the said Henrietta Kruse, the petition of the plaintiff as against her and the defendant, The Magnolia Building Association, is dismissed at the costs of said plaintiff, and as to the said Frederick W. Kruse, husband of the said Henrietta, the said petition is dismissed without prejudice to the rights of the said plaintiff on the claim asserted against him.
    “ Wherefore, it is ordered and adjudged that the said petition of the plaintiff be so dismissed, and that the said plaintiff pay the costs of this case, taxed at $-, to all of which plaintiff excepts, and thereupon the plaintiff files his motion for a new trial, which is overruled by the court to which the plaintiff excepts.”
    
      Emory M. Garrison and Tisdale & Grey for plaintiff in error.
    
      August H. Bode, for defendants in error.
   By the Coubt:

Under the circumstances shown by the record, two judges of the circuit court constitute a quorum, but if they are divided in opinion as to the effect of evidence offered upoa issues of fact, a valid final judgment cannot be rendered. A single judge of the circuit court cannot make a finding of facts. Revised Statutes, section 446.

Judgment reversed.  