36 Cal. 328 | Cal. | 1868
At the January Term the Court directed an order to be entered granting a rehearing in this case, but by mistake the Clerk’s entry in the minutes of that day’s proceeding shows that a rehearing was denied. The minutes of the Chief Justice in the Rehearing Calendar, however, show that the order directed to be entered granted a rehearing, and this accords with the distinct recollection of the Justices, and with other circumstances shown by the affidavits. We have no doubt that the latter was the order directed to be entered and that the wrong order was entered by the Clerk by mistake. The remittitur was issued, and the mistake was not discovered till after the lapse of that term. A motion is now made to recall the remittitur, to vacate the order entered by mistake, and to enter the order actually made. The only question is, whether we now have the power to recall tho remittitur,, and correct the mistake. In Rowland y. Kreyenhagen, 24 Cal. 52, we held that although this Court loses jurisdiction after the remittitur has been issued and filed in the Court below, yet, if any fraud or imposition has been practiced upon the Court, or the opposite counsel by the
Ordered that the remittitur be recalled, the minutes of the Clerk, showing that a rehearing was denied be corrected so as to show that a rehearing was granted, and the cause restored to the calendar.