Texas Co. v. Moynier

29 P.2d 873 | Cal. Ct. App. | 1934

This appeal is from a judgment entered pursuant to aremittitur of this court on the previous appeal in the cause, reported in 129 Cal.App. 738 [19 P.2d 280]. Theremittitur there directed "that the judgment of the superior court in and for the county of Los Angeles in the above-entitled cause be and the same is hereby reversed with directions to thetrial court to render judgment as prayed for in the complaint". The complaint prayed for judgment for money paid for taxes assessed to plaintiff on certain property leased to defendants. The trial court rendered judgment for defendants, which was reversed, as above shown.

[1] Upon this appeal both parties agree that the judgment appealed from was entered pursuant to the remittitur above quoted.

As was said by our Supreme Court in Keller v. Lewis,56 Cal. 466, in a similar situation, the trial court had no discretion. It could not do otherwise than as directed by theremittitur. [2] Appellants assert that our opinion on the former appeal was based upon a phase of the case not theretofore discussed and that they have not had their day in court on that issue. After petition for rehearing in this court and after petition for hearing in the Supreme Court, both of which were denied, it is now too late to raise this question.

The judgment is affirmed.

Stephens, P.J., and Archbald, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on March 27, 1934, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 26, 1934.