#### John Claflin, Executor, v. Edward F. Dunne.

Practice—Affirmance ~by Operation of Law.

Where a judge of this court tried, the case under consideration in the court below, and the other judges are divided in opinion, the judgment will be affirmed by operation of law.

[Opinion filed January 16, 1889.]

Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.

Messrs. Kraus, Mayer & Stein, for appellants.

Messrs. Hynes & Dunne, for appellee.

Garnett, P. J.

This case was tried and disposed of in the court below before Judge Gary. He also overruled the *85motion to set aside the judgment, and is prohibited by the constitution from sitting in review of such action on this appeal.

The other two judges of this court disagree in opinion on the questions involved in the case. The result is, that the order of the court below, overruling the motion of appellants to vacate and set aside the judgment rendered in said cause in favor of appellee, is affirmed by operation of law.

Judgment affirmed.