Anderson v. Woesner , 66 Idaho 441 ( 1944 )

Expressing no opinion on the merits.

This cause was heard before the Industrial Accident Board. From the findings, rulings and award made by the board an appeal was taken to this court, whereupon the cause was duly submitted, taken under advisement, assigned, and thereafter an opinion was handed down. A timely petition for rehearing was filed, duly considered and granted. The cause was reargued and resubmitted, whereupon the writer of the first opinion wrote an opinion on rehearing.

The general rule is that where a rehearing is granted the case stands as though no previous hearing had been had. (3 Am.Jur., sc. 810, p. 352.) Where a rehearing is granted generally the case is before the court for examination and decision as though it had never been considered or decided. (3 Cyc. 219, subd. 6; 4 C.J.S., sec. 1447, p. 2044.) Or, as otherwise stated in Stoke v. Converse et al, Ann. Cas. 1913E, 270, granting a rehearing on appeal withdraws the former opinion which becomes devoid of force or authority until subsequently readopted. (Kroeger v. Twin Buttes R. Co. (Ariz.), 127 P. 725, Ann. Cas. 1914A, 1289; Ringling v. Biering (Mont.), 272 P. 688.)

Under such conditions the case stands as though no previous hearing had been had, and the opinion on rehearing becomes the opinion of the court provided it is concurred in by the court or a majority of the members thereof. A previous concurrence by a Justice is no longer a concurrence unless he concurs in the opinion on rehearing. (3 Cyc. 219, subd. 7.)

In June 1908, an appeal was taken to this court in the case of Knowles v. New Sweden Irr. District, 16 Idaho 217, 101 P. 81. The cause was argued, submitted and taken under advisement, and thereafter an opinion was written reversing the judgment of the trial judge. A petition for rehearing was filed, granted, and the cause was reargued and resubmitted. Thereafter an opinion was written affirming the trial judge. In a separate opinion, one of the Justices concurred in the conclusion reached in the opinion on rehearing. Both the original opinion and the opinion on rehearing were published in the Idaho Reports. The first opinion was no longer of any force or effect as the opinion of the court, and no reason for its publication in the Idaho Reports existed. The opinion on rehearing, when concurred in by the court or a majority thereof, became the opinion of the court.

After careful consideration, I have concluded, advisedly, to refrain from expressing an opinion upon the merits of the case.