83 Cal. 505 | Cal. | 1890
Lead Opinion
— This case is before the court upon a motion of appellant to recall the remittitur.
The cause was heard in Department One, and the judgment of the court below was affirmed, with fifteen per cent damages, the opinion of the court in Department having been filed September 7, 1889 (80 Cal. 460). At the end of thirty days the remittitur issued as usual, no petition for hearing in Bank having been filed.
The motion to recall the remittitur is based on an affidavit of appellant’s counsel, to the effect that on September 16,1889, he made a motion in Department One to modify the judgment by striking off the said fifteen per cent damages, and that said motion had never been decided. The records of the court do not show that any such motion was made. As a matter of fact, however, counsel did make such a motion or request orally, but
Motion to recall remittitur denied.
Sharpstein, J., Thornton, J., and Beatty, C. J., concurred.
Dissenting Opinion
I am unable to concur in the conclusion of the majority. The fifteen per cent damages were imposed without notice to the appellant, and upon learning the fact, her counsel, before the expiration of the thirty days, came in and moved the court to modify the judgment by striking out the damages which it had added without a hearing. The motion w7as submitted, and I think he had the right to assume that the court w;ould control its remittitur until all matters affecting the judgment had been passed on. But it is said the motion was decided, although no record was made of it.
Fox, J., concurred with Justice Paterson.