This case is before us on rehearing granted as a matter of course because of section 23, C. C. P., as amended by chapter 124, Laws 1911. Judge Smith still declines to participate in the decision (see 38 S. D. 446, 161 N. W. 813), and, the remaining members of the court being divided upon the questions of law therein, the order appealed from is affirmed by a divided court. No costs will be taxed.