PENNIX v. WINTON (1944)

On of the contentions made by the defendant in his petition for a hearing and requiring special mention is that the judgment of the District Court of Appeal was not pronounced by a majority vote of that court. The judgment was rendered by Justice Spence and Justice pro tem Dooling. Presiding Justice Nourse does not appear on the face of the judgment to have participated.

However, the minutes of the District Court of Appeal, of which judicial notice is taken (Code Civ.Proc. § 1875), disclose that the appeal in the case came on for argument, and was argued, on September 14, 1943, before a duly constituted court at which were present Presiding Justice Nourse, Justice Spence and Justice Dooling, sitting under regular assignment as a justice pro tempore. At the close of the argument the cause was submitted for decision. Upon the order of submission jurisdiction to decide the case attached to the court as so constituted, all three of whose members were entitled to participate in the decision, and any two of whom had the power to pronounce a judgment. No disqualification or other valid reason (Rule 29, sub. (a)(3), Rules on Appeal) is advanced which would deprive the court of the power to render a judgment with the concurrence of a majority of the justices so constituting the court at the time the cause was so submitted for decision.

The petition for hearing is denied.

PER CURIAM.