¶1On Second Petition for Rehearing.
¶2See also — N. D. —. This case has been well and thoroughly argued by counsel and by the judges in conference. By a majority of the judges a decision was given in favor of the defendant, and a motion for rehearing was denied. Now a second petition for rehearing is filed on the same grounds as presented in the former petition, and on an affidavit in regard to the supposed disqualification of Justice Birdzell to sit as a judge in the case.
¶3The affidavit shows that long prior to the time of the presentation of this case on rehearing, and under the supposition that the case would be disposed'of before Justice Birdzell would become a member of the court, on a train Chas. A. Lyche, attorney for defendant, had some conversation with Justice Birdzell, in which he intimated that he had a decided view on the law of the case, and expressed some doubts concerning his qualification to sit as a judge. Prior to the argument that question was submitted to the attorneys, and it was agreed that there was no objection to Judge Birdzell. There is no claim that he was related to either party, that he had ever been consulted or retained as counsel, or that he had any personal interest in the case. The' fact that he may have had a decided opinion concerning the law was no disqualification. Doubtless Justice Robinson had a more decided opinion concerning the law and the facts of the case, and it was shown by his strenuous dissent.
¶4The case involved mixed questions of law and fact on which judges might well differ. It is proper and right that every judge should know the law and have a decided opinion concerning the law of every case, *223and there would be no propriety in now reopening and referring this case for decision to some judge of the district court. There must be an end to litigation. The motion is denied.