The opinion
ON PETITION FOR REHEARING
PER CURIAM:
Wyoming Bancorporation has filed herein its “Petition for Reargument”, requesting the court to withdraw its opinion in the matter and schedule the appeal for reargument before Justices Guthrie and Mc-Clintock (both of whom participated in the decision handed down herein on October 16, 1974) and a third justice or judge as may be designated, or, in the alternative, before a panel of five judges. The basis of the application is the hospitalization of Mr. Justice McIntyre, who was the third member of the panel hearing oral argument upon the case and whose concurrence in the majority opinion as written by Mr. Justice Guthrie is questioned.
This Court has no rule and has rendered no decision pertaining to reargument but our Rule 14 does permit an application for rehearing. In Harrington v. Denny (D.C.W.D.Mo.1933), 3 F.Supp. 584 , 588 it was said:
“A very fine and I think nonexistent distinction is drawn when it is contended, as plaintiff contends here, that an order granting a reargument is one thing and an order granting a rehearing is another *446 thing. After all, what is a rehearing? In an appellate court it is nothing more than a reargument. It was so ruled by the Supreme Court of Missouri in just those words in Granite, etc., Co. v. Park View Realty & Improvement Co. et al, supra [ 270 Mo. 698 , 196 S.W. 1142 ], In that case it was said (270 Mo. loc. cit. 700, 196 S.W. 1142, 1143 ) ‘that the term “rehearing” indicates, i. e., that the case is for reargument and resubmission.’ ”
We therefore treat the petition as an application for rehearing. We have previously recognized that our rule does not specify the grounds upon which a rehearing will be granted, but we would concede that the hospitalization of a justice who has heard the oral argument as a member of a three-justice panel as permitted by Article 5, § 4(a) of the Wyoming Constitution, would be and is proper basis for concern of a litigant and could be basis for rehearing where the panel is split and there is a dissenting opinion, provided that the judge who became hospitalized was thereby incapacitated from effective consideration of the written briefs and record in the case and the oral argument which he has heard.
This is not such a case. Mr. Justice McIntyre, as was his continuing practice, carefully considered the briefs in the matter prior to the oral argument, participated actively in the argument, and in oral conference following the argument, and specifically considered and rejected an opinion of Justice McClintock, tendered by him as the opinion of the panel, and then considered and joined in the opinion tendered by Justice Guthrie. We therefore have no hesitation, with the complete agreement of the dissenting justice, in stating that concurrence by Justice McIntyre, whose hospitalization has been of such a nature as not to preclude conference with other judges and thoughtful consideration of the facts and issues involved in the cause, represents a thoughtful and active concurrence in the majority opinion as heretofore rendered and filed herein.
The petition for rehearing is therefore denied.