230 P. 196 | Cal. Ct. App. | 1924
Motion by respondents for an order to recall theremittitur issued herein on June 30, 1924, and to strike therefrom the words "the appellant to recover costs of this appeal."
The appellant Walter J. Petersen commenced this proceeding incertiorari in the superior court of Alameda County for the purpose of having reviewed and annulled certain proceedings of the Civil Service Board of the city of Oakland in regard to the reinstatement of the appellant as a member of the Oakland police department. After issue was joined and a trial had upon the merits, the trial court confirmed the order of the said Civil Service Board, dismissed said writ of review, and allowed respondents their costs. Petersen appealed from the judgment of said trial court and on April 30, 1924, said judgment was reversed. (Petersen v. Civil Service Board,
The respondents then petitioned for a hearing before the supreme court and their petition was denied on June 26, 1924. (Petersen v. Civil Service Board, supra.) Thereafter, and on June 30, 1924, the remittitur was issued by the clerk of this court and filed in the office of the clerk of the trial court on July 1, 1924.
Respondents contend that a certiorari proceeding is not one of those proceedings included within the provisions of section
[1] It must be borne in mind, however, that the proceeding before us was not an original application to this court for a writ of review, but was a direct appeal from a judgment of the superior court rendered after trial upon the merits. The terms of the judgment rendered upon appeal were that the judgment of the superior court be reversed, and no order was made as to costs. Section
[2] Assuming, however, as respondents contend, that it now appears that, owing to the nature of the proceeding, appellant was not entitled, as a matter of law, to a judgment for the recovery of costs on appeal, a point we do not find it necessary to determine, the error complained of cannot be corrected by recalling the remittitur and striking therefrom the objectionable provision as to costs; but it will require, first, a judicial determination by this court that appellant is not legally entitled to costs, and, secondly, a modification of the judgment on appeal by adding thereto an order to that effect. At this late date we have no power to do either, for the reason that at the time the motion under *755
consideration was filed the judgment on appeal had long since become final and this court had lost jurisdiction. InCrenshaw Bros. v. Southern Pac. Co.,
The motion is denied.
St. Sure, J., and Tyler, P. J., concurred.
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 17, 1924.
Myers, C. J., dissented from order denying petition. *756