In re Mahon

The Coubt. On the first appeal in McCue v. Tun-stead, the order of this court did not lay down in precise term's the judgment to be entered in the court below. It however determined that the plaintiff was entitled to a judgment, and (read in the light of the opinion) that the horse, the subject of the action, was exempt from execution. In other respects, the form or scope of the judgment was left to the court below, with the limitation that it must be a judgment “upon,” or one supported by, the findings. The Superior Court was referred to the findings, was called on to ascertain what they were, and judicially to interpret them. This examination and interpretation of the findings, and the determination of the conclusions of law to be declared from them, involved the judicial function, and made the direction of this court something very different from a merely ministerial duty imposed upon an officer. When, by order of this court, the Superior Court has been directed to enter a judgment, and upon return of the cause a judgment has been inadvertently entered, which does not accord with the direction of the Supreme Court, there can be no doubt that the Superior Court has power to amend such judgment so as to make [588] it conform to our order. And when the direction is not specific, but leaves room for the exercise of any discretion in the court below, that court has a judicial power to determine whether an order as entered does or does not conform to the direction of this court. For an error in deciding that a judgment does not accord with the direction of this court, the judge cannot and ought not to be held as for contempt. Moreover, the modification of the judgment of which the plaintiff herein complains was an amendment which, to the extent of the change, made it conform to the order of this court. In McCue v. Tunstead, 65 Cal. 507, it was ¡directed that the court below “enter judgment for the plaintiff upon the findings.” This mandate was not obeyed in the first instance, since there was no finding on which could be based that part of the judgment which provided for damages for the detention of the property since the date of the findings, “ or interest on .said value in the sum of $490,” etc. There is a finding that the plaintiff had taken possession of the horse, and retained possession up to the trial, and there is no finding that he had suffered any damage by reason of the detention of the property prior to its recapture. It is clear from what has been said that the clerk of the Superior Court was not guilty of contempt. Ordered, that the proceedings as for contempt be dismissed.