Jergens v. Gallop , 40 So. 2d 775 ( 1949 )

On petition to vacate and set aside a decision, 40 So. 2d 128, which adhered on rehearing to 38 So. 2d 747.

Petition denied. The appeal was affirmed by memorandum Per Curiam on October 19, 1948, 38 So. 2d 747, a petition for rehearing was denied February 15, 1949, the mandate issued thereto was recalled on March 4, 1949, and the cause was ordered considered by the Court en banc.

On April 19, 1949, by a memorandum Per Curiam decision 40 So. 2d 128, this Court, sitting en banc, affirmed the decree appealed.

Appellant has now before this Court a petition to vacate and set aside the affirmance of April 19, 1949, based upon the premise that notwithstanding all seven Justices of this Court have considered his appeal and participated in the judgment affirming the decree appealed, he has not been heard, because oral argument on rehearing has not been had. The appellant has been "heard" on rehearing on his brief and the record. Oral argument is not an essential to rehearing.

Upon the facts as stated by Justice Barns, as reported in Fla.,38 So. 2d 747, when the petition for rehearing was denied, Justices Terrell, Hobson, and Barns are of the opinion that the "decree appealed should be affirmed, without prejudice to the rights of the appellant respecting any obligation of the wife to attend the Tax Court trial and any default in that regard," while Chief Justice Adams and Justices Chapman, Thomas, and Sebring are of the opinion that the entire decree should be affirmed.

Wherefore the petition of appellant, filed April 23, 1949, is denied.

ADAMS, C.J., and TERRELL, CHAPMAN, THOMAS, SEBRING, BARNS and HOBSON, JJ., concur.