183 P. 208 | Cal. Ct. App. | 1919
This is an application for an order recalling theremittitur, and, also, to correct the judgment of this court in the action made on the eighth day of April, 1919.
The judgment of the lower court from which the appeal was taken was for the principal sum of $3,163.50, with interest thereon at the rate of seven per cent per annum, as follows: . . . In reviewing the case, this court reached the conclusion that the amount of recovery should be the sum of $1,528.06, with interest thereon at the rate of seven per cent per annum, as follows: . . . thus modifying the judgment and reducing the principal in the sum of $1,635.44. The plaintiff in the action petitioned the supreme court for a hearing in that court, which was on June 5, 1919, denied. No petition for rehearing in this court was filed and no motion made to correct the judgment of this court, either as to the amount found to be due plaintiff from defendant or as to the matter of costs on the appeal. The matter stood thus until June 13, 1919, when the present application was filed.
It appears from the application that after theremittitur was received and filed by the clerk of the lower court appellant served its cost bill upon respondents' attorney, who thereupon came to this court for the relief asked.
Section
[1] The clerk of this court acted in obedience to this rule in issuing the remittitur and the rule itself is authorized by the statute. The supreme court in Granger v. Sheriff,
In Martin v. Wagner,
Obviously, we cannot amend the remittitur should we recall it without first amending the judgment and, as we have seen, this we cannot do. It is not claimed that there was fraud, or that the court was imposed upon or that, by its judgment, it inadvertently failed to state which party should pay the costs of the appeal. [2] The mistake alleged was on the part of counsel for respondent, as counsel stated, in assuming that the judgment reading, "and, as thus modified, the judgment is affirmed," meant that the judgment of the superior court was "affirmed in every particular, except the amount recovered thereunder." The misapprehension of counsel as to the effect of the judgment furnishes no ground for recalling the remittitur and setting aside the judgment and amending it in any particular. As we understand the decisions in the cases cited, we must hold that this court, under the circumstances shown, is without jurisdiction to afford the relief prayed for.
[3] Section
The application is denied.
Burnett, J., and Hart, J., concurred. *48