The amended petition for rehearing in the above stated case is hereto attached. After careful consideration the Court is of the opinion that no material matter or issue arising upon the record has been overlooked or disregarded.

1 Petitioner further contends that the cause was heard January 13, 1909 'by the Court which then consisted of Chief Justice Pope and Associate Justices, Gary and Jones, Associate Justice Woods being temporarily absent, that the opinion of the Court was filed April 8, 1910 at which time Chief Justice Pope was not a member of the Court having resigned, and that, therefore, there was no quorum of the Court authorized to participate in the decision of the case.

It appears, however, that in June 1909 when the motion to dismiss the appeal from the order of Judge DeVore, dated April 17, 1909, was heard, the Court consisted of Chief Justice Jones, and Associate Justices, Gary and Woods, Justice Hydride being disqualified having heard the cause on Circuit, and at that time a formal order by agreement was made that the motion to dismiss would be considered contemporaneously with the consideration of the appeal from the judgment upon the merits. This can only be construed as a submission by consent of the main appeal to the Court as then constituted.

It can not be urged or held that Justice Woods was not qualified to participate in the decision of the case upon its merits, as well as in the motion to dismiss.

The case was submitted to the Court having a quorum present and was decided by a quorum of the Court authorized to participate therein.

The motion to dismiss the appeal from the order refusing a new trial on after-discovered evidence has been determined adversely to appellant.

*160 2 There being no ground for a rehearing the petition herein is dismissed, and the stay of remittitur heretofore granted is revoked.