Jenkins v. Powe

Per Curiam. Upon respondent’s motion based upon a short record the appeal in this cause was dismissed on October 19, 1897. Thereafter respondent filed a motion to amend the judgment of this court and include therein certain costs claimed by respondent to have accrued during the pendency of the action in the superior court, and which 114 —through inadvertency, it is claimed — were omitted from the judgment of that court. This motion was denied on January 28, 1898, for the reason that it did not appear to us that the lower court had ever passed upon the question of respondent’s right to the allowance. But in denying the motion we filed no opinion and we are now requested to indicate our reasons for denying the same in order that the decision of the motion may not prejudice any right of respondent to apply to the superior court for such remedy as ho may be entitled to. Without attempting to determine whether or not respondent is entitled to such costs, we conclude that the parties are entitled to be informed of our reasons for denying the motion to amend the judgment, and as already stated, the sole reason for our decision was that it did not appear to us that the matter had ever been passed upon by the superior court, and that in the exercise of our appellate jurisdiction we could not properly consider it.