204 P. 602 | Nev. | 1922
By the Court,
This is an application for an order directing the clerk of this court to issue “a duplicate original remittitur or a new remittitur, nunc pro tunc.” The application is based upon the ground that the original remittitur has been lost, and cannot be found among the records and files of the trial court, and for the further reason that it was never filed with the clerk of said court.
The files of this court show that a remittitur issued herein on the 14th day of April, 1916; that the clerk mailed the same to the clerk of the trial court, and
This is a case in which the respondent recovered a judgment in the trial court, which was reversed on appeal to this court, the opinion having been filed June 22, 1914 (37 Nev. 205, 141 Pac. 676). A duly verified cost bill was filed with the clerk of this court on July 2, 1914, wherein appellant claims costs in the sum of $416.12. The nature of the present application presupposes the proper issuance of the remittitur on April 14, 1916.
Counsel for appellant contends that this court still has j urisdiction of the case, and hence should order the clerk to issue another remittitur. To sustain this contention our attention is directed to section 5361 of Revised Laws of 1912, which reads:
“Whenever costs are awarded to a party by an appellate court, such party may have an execution for the same on filing a remittitur with the clerk of the court below. * * *”
“When j udgment is rendered upon the appeal, it shall be certified by the clerk of the supreme court to the clerk with whom the judgment roll is filed or the order appealed from is entered. In cases of appeal from the judgment, the clerk with whom the roll is filed shall*353 attach the certificate to the judgment roll and enter a minute of the judgment of the supreme court on the docket against the original entry. In cases of appeal from an order, the clerk shall enter at length, in the records of the court, the certificate received, and minute • against the entry of the order appealed from a reference to the certificate, with a brief statement that the order has been affirmed, reversed, or modified, as the case may be, by the supreme court on appeal.”
Rule 16 of this court reads:
“Where a judgment is reversed or modified, a certified copy of the opinion in the case shall be transmitted, with the remittitur, to the court below.”
It is said in 25 C. J. at page 1124: ,
“The word ‘filed’ has a well-defined meaning, signifying delivery to the proper officer and by him received to be kept on file.”
We do not wish to be understood as holding that before this court loses jurisdiction the remittitur must be actually filed. There is respectable authority to the contrary. Fischer v. Lukens, 41 Cal. App. 360, 182 Pac. 967. We do not find it necessary to determine the point.
Incidentally, we think it well to call attention to the fact that the records and files show that the opinion reversing the judgment in this case was filed on June 22, 1914. The cost bill was not filed until July 2, 1914, whereas rule 7, as it then read, provided that it be filed
Application denied.